Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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>MPLETE COLLEOTION

' • «

State

AKD \

^GS FOR HIGH TREASON AND OTHER
CRIMES AND MISDEMEANORS

FSOM THB

VRLIEST PERIOD TO THE PRESENT TIME,

J^OTES AKD OTHER ILLUSTBATIOJ^S

COMPILED BY

B. HOWELL, Esq. F.R.S. F.S.A.

VOL. XVII.

A.D. 1726—1743.

LONDON:

rTEI> BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREET s

MAM. H VBST, REE8, ORME, & BROWN; J. RICHARDSON; BLACK,
V, 8c CO.; E. JEFFERY; J. HATCHARD ; E. LLOYD; E. BUDD ;
J1.I>ER ; J- BOOKER ; CRADOCK & JOY ; R. U. EVANS ; J. BOOTH ;
r. C- HANSARD.

1813.

• • •

• ••• «.«

• • . • • •
• ■ • • •

• • • • • •

• • • * a ■ • '

* • • •

^.^A

TABLE OF CONTENTS

VOLUME XVII.

*0* The new Artidei are marked [N.]

REIGN OF KING GEORGE THE FIRST.

Page
407. The Itial of JOHN GRAHAM, ALEXANDER CRAW.
FOORD, and WILLIAM HOGG, for drinkiDg the Pretender't
Healtby a«d. 1715. Now first printed from the Records of Jus*
tidaiy at Edinbwi^ [N.] 1

46B. Hie TMal of Mm^ JOHN ONEBY, at thm Seselons-House in the

Old-Bailqr, lor the Murder of Wm. Gower, esq. a. d. 1726 90

REIGN OF KING GEORGE THE SECOND.

469. The Trial of JAMES CARNEGIE, of Finhaven, before the Courif

of Justiciary (in Scotland), held at Edinburgh, July 25, for the
Murder of Charles Earl of Strathmore, a. p. 1728 ..rb 74

470. The Case of EDMUND CURL, Bookseller, in the King's-Bench,

for publishing a Libel, a. p. 1727 • •••• .^t. ...••• 154

471. The Trial of WILLIAM HALES, for forging a Promissory Note

for G,40tf. in the Name of Thomas Gibson, esq. and Partners,
and for poblishmg the same as a true one, knowing it to be false
and counterfeit, a. d. 1728 162

472. The Trial of Mr. WILLIAM HALES, at the Scssions-House in
the Old-Bailey, for Misdemeanors, in forging several Notes and
lodoraementt in the Name of Samuel Edwards, esq. and publish-
ing the aamey knowing them to be forged, a. p. 1729 210

TABLE OP CONIXMTS.

Page
The Trial itf WILLIAM ACTOK, Deputy-Keeper ml H««d

Timikty of the Manhalset Prken m Southwark, for the Murder

of ThoiDis Blitty late a Pirisoiier in the said Prison, at the Asrizes

held at Kingston-upon-Thames, for the County of Surrey, Aug.

1, A.D.I7S9 469

B The Trial of WILLIAM ACTON, for the Murder of John Brbm-

fiekl, at King8ton*upon-Tliames, in Surrey, August 2, a. d. 1729 511

H. The Trial of WILLIAM ACTON, for the Murder of Robert New-
ton, at the Assizes h'dd atKbgatcm-upon-Thames, for the County
of Surrey, Augusts, a.d. 1729 • 506

BS. The Trial of WILLIAM ACTON, for the Murder of James
Thompson, at the Assizes held at Kingston-upon-Thames^ in
Surrey, August 2, a. d. 1729. .•••... 546

ft %?eral IVoeeedingcr relaiidg to the baiHng Mr. B AMBRID6E, both
at the King's-Beneh, and at the Sessions-House, in the Old-Bailey,
previous to his Trial for Felony, a.d. 1729 •••.••• 563

IS7. The Trial of THOMAS BAMBRIDGE, esq. for Felony, a. d.

1729 582

Ke. Minutes of the Proceedings of the Committee, appointed to enquire
into the State of the Gaols of this Kingdom, touching a Charge
against Sir ROBERT EYRE, knt. Lord Chief Justice of his
Majesty's Court of Common Pleas, for personally visiting Thomas
Bambridge, late Warden of the Fleet, whilst he was a Prisoner in
Newgate, under a Commitment of the House of Commons, &c. &c.
A.D. 1730 619

Ml The Trial of Mr. RICHARD FRANKLIN, for printing and pub-
lishing ** A Letter from the Hague,'* in the Country Journal, or
CrafUman, of Saturday, the 2d of January, 1731, at the Sittings
of the Court of King's«Bench, at Westminster, on Friday, Dec 3,
A.D. 1731 620

ft The Trial of Mr. JOHN PETER ZENGER, of New- York, Printer,
ior printing and publishing a Libel against the Government, at
New-York, on August ^ih^ a. d. 1735 675

TABLE OF CONTENTS.

Page
491. The Trial of JOHN OUPHANT and others, for drinldng to the

Health of the Pretender, and curring the King, a.d« 1715. [Now

first published from the lUcordsofJustidary at Edinburgh.] [N.] 763

499. The Trial of Mr. GEORGE ROBERTSON, Minister, for neglect-
iDg to pray for the King, a. d. 1715. [Now first published from
the Records of Justiciary at Edinburgh.] [N.] 788

493. The Trial of ALEXANDER STEWART, for maintaining the Title

of the Pretender, a. n. 1715. [Now first published from the Re-
cords of Justiciary at Edinburgh.] [N] 791

494. The Trial of JAMES GEDDES and JOHN CRAWFOORD ( Ser-

vants of Lord Southesk,) for drinking the Health of the P^tender,
and cursmg the King, a. d. 1715. [Now first published from the
Records of Justidary at Edinburgh.] [N.] 799

493. Case of the KING against GIBBON, a^ d. 17S4. Upon an Infor*
mation, in the Nature of a Quo Warranto, by the King^s Coro-
ner and Attorney, against the Defendant, to shew by what Autho-
rity he claimed to be a Freeman of the Town and Port of New-
Romney, at the Rehitk>n of William Jarvis. Triedat Kqnt Assizes,
held at Maidstone, the 6th of August, 1734 802

4%. Case of the KING against RICHARD ELLES, a. d. 1734. Upon
an Information, in the Nature of a Quo WarrantOi by the
King's Coroner and Attorney, against the Defendant, to shew by
what Authority he claims to be Mayor of the Town and Port of
New-Romney, at the Relation of Benjamm Man. Tried at Kent
Assises, held at Maidstone, the 6th of August, 1734 822

i97. Case of HENRY MOORE, Plaindfl; against the Mayor, Jurats, and
Commonalty of the Town and Port of Hastings, in the County of
Sussex, Defendants, a. d. 1736 846

498. Pk-oceedings in the Trial of Captain JOHN PORTEOUS, for Mur-

der, A. D. 1736 923

499. The Trial of WILLIAM MACLAUCHLAN, for Mobbing, Mur-

der and other Crimet, a. d. 17S7. [Mac Lourin's Aigunents
and DecuHMH.] [N.] » PM

TABLE OF CONTENia

Page
aOO. The Triak of SAMUEL GOODERE, esq. MATTHEW MA-

HONY, and CHARLES WHITE, for the Murder of Sir John

Dineley Goodere» bart (Brother to the said Samuel Goodere) on

Board his Majesty's Ship the Ruby, a. d. 1741 1003

MI. The Trial of QHARLES WHITE, for the Murder of Sir John

Goodeie, a.d. i74fl.« , 1079

JOS. The Trial of JAMES ANNESLET and JOSEPH REDDING,
at the Sesttoos-House, in the Old-Bailey, for the Murder of
Tbomas Egglestone, a. n. 1742 ••••••••• 1094

m. The Trial in Ejectment between CAMPBELL CRAIG, Lessee of
JAMES ANNESLET, esq. and others, Plaintiff; and the Right
Hon. RICHARD Earlof ANGLESEA, Defendant, a. i>. I74S 11S0

ADVERTISEMENT.

Mr. Cohbett having disposed of his IfUerest m this Woik,
the future Volumes will be published under the TUle prefixei b
this Volume ; and new Titles will be furnished for the first lb
Volumes.

*ii* CommunicatioDB for the Work will be received b}' the Printer.

Lately published, by the same Proprietors^

The Thirteenth Volume of

THE PARLIAMENTARY HISTORY OP ENGLAND,

From the Earliest Period down to the Year 1803.

[Vol. XIV. will be published in February.']

Also,
THE PARLIAMENTARY DEBATES,

From the Year 1803 to the present Time.

The Twenty-first, Twentt-second, and Twenty-third Voluiiiet cf the
Work, comprising the Debates in both Houses of Parliament during the Sesuon
1812, are ready for delivery.

*4,t* Subscribers who may not have completed their Sets are requested to make
immediate application for the Volumes wanted.

A COMPLETE COLLECTION

STATE TRIALS,

467. The Trial of John Graham, Alkxandku Crawfoohd, and
William Hoog, for drinking the Pretender's Health:
1 George L a. d. 1715. [Now first printed from the Re-
cords of Justiciary at Edinburgh.]

Cnu JomcfARiA^ S. D. N. Res^, tenta in
Pneiorio Burgi de EfliDbargb, trigesimo
primo die mcnsis JaDuarij miiJesimo sep-
tinjfeotesiroo decimo qniDto, Per Hono-
nbites «iro8, Adam Cockburne of Ormia-
Umn Justiciariuro Clericum, Dominoa
GUbertum £liot de Minto, Jacobam Mac-
kenzie de RoyitouQ et Gulielinuro Calder-
wood de PoUoiin, Magistros Jacobum
HamihoD de Pancaitland et Davidem
Efikiiie de Duo, Commissionarios Justi-
ciirij diet. 8. D. N. Regis.

Curia legittime afHrmata.

IntraiC John Graham, youDgfer, of ^ew-
^^n: Alexander Crawfoord^ younger, of Man-
niulmiln; and Mr. William Il^gg, desiu^ned
kr^ of Edinburgh, professor of pUilosophy .

iVDICTED and accused at the instance of sir

Pivid Dalrynnple of Hailes, baronet, his ma-

jf^'y's advocate for his majesty's interest, for

Jniikiojjr the Pretender's health, in manner

mentioned in the criminal tetters raised against

'h^ thereaoent. Makeing mention, that

*j»*Te, by the laws of ScoUaml made before the

^ Dion, particularly, the 4th act of the first

*J*«»oo of her late majestic queen Anne of

i'-'cfted memory, her first parliament, intituled,

Act airaiost I>easiog Makers and Slanderers,

»3'i Che acts therein recited. And by the laws

*>f ill well goTemed nations, leasing makeing,

^ the uttering of sUndrous speeches, tending

^ excite sedition, and alienat the affection of

^ people from his majesty's person and go-

vnnmeot, or to sett up and encourage the false

^ icandalons pretensions of any person to the

p^Jiidice of hift majesty, his estate, and his

JQX lod law full title to the crown of these

'(•Ims, stirring up thereby his subjects to mis-

IiluiHrB, sedition, unquietness, and to cast off

^rdoe cibedieace to bij majestie, to their evi-

VOL XVII.

dent peril, tinsell and deftructioti, are crimes of
a high nature and severely punishable. And
more especially, whereas by an act of the par-
liament of Great Britain, made in the sixth year
of the reign of her said late majestie queen
Anne, intituled, Av Act for the Security of her
majesty's person and goveniment, and of the
Snooession to the crown of Britain in the Pro-
testant line; It is amongst other things en-
acted, That if any person or persons shall mali-
ciously and directly, by preaching, teaching, or
advysed speaking, declare maintain and afnrm,
that the pretended prince of Wales, who now
stiles himself king of Great Britain or king
of England by the name of James tlie
third, or king of Scotland by the name
of James the eight, has any right or title
to the crown of these realms, every such
person or persons shall incurr the danger and
penalty of Premunire made in England, in the
16th year of the reigne of Richard the second.
Yet nevertheless it was of verity, that the saids
John Grahamc, Alexander Crawfurd and Mr.
William Hogg, and each of them were guilty
actors art and part of the foresaid crimes, in so
far as, upon the 15th or 16th days of the moocth
of December last 1714 years, a stoup with ale
in i^ or some other liquor, being bront(lit to
the street of Edinburgh, near to the Tron
church and to the main guard, by a woman to
them, and a cup filled up and delivered to the
said John Grahame, he proposed the king's
health, and one having aslced what king? the
said Alexander Crawfurd cried out, Ring James
the eight; whereupon the said John Grahame
drank to the healili of king James the eight,
and the cup being filled np again twice to the
said Alexander Crawfurd and Mr. William
Hogg, each of them did likewise drink and
spoke these words, To the health of king James
the right, and not contontetl with their thus
direct open affirming of tha pretooded and

Aleiander Cnwlurd nd Mr. William Hagi(i
did drink tu Ihe bappy mioration of (he uld
Pretender, under the DBine of kitiK Jamea the
eight ; which words, Tn llie health of kln^
James the ei^ht, aai to the happy-reituratioD
of kinti Jamea the eight, orwonls to that effect,
thev and each of them did pranoonee allaad,
and huzza'd at each health, daDcin^attheaame
time, and haTiog hautboyi playiDE te them
in deniongtratioD of Iheir Joy and afiectioD to
what they were doing, la open deBaoce and
GODlempt of the lawi generally and particu-
larly aboTe mentioned, and they were seized in
the Tery act, or iocontineDt thereafter beinff
pnnued by Ihe city guard*, and the atoup and
cup found iu the place to which they had fled,
■nd wherelhey were taken, and the aaida John
Gnham, Alexander Crawfnrd, and Mr. WUHam
Hogg were immediately thereafter brought
priaonera into the guard, £^v all which, they
and each of them, were guilty aclora art and
part of the breach of the aaid Mwi, which, ur

Trial qfJohn Graham and others,

Iktoilvation for his Majeity't Advoc
highoeHS interest,

*«raict 01 an aBiae, oerois idb wrua jiuuc*
j^SDcral, jutice okrk ud oommiaaiouera of
jiiaticiary, they and each of them ought to be

Cuniahed with ihe pains of law. And particn-
irly, they and each of them ought lo be putt
out of his m^eaty'n protection, aud eadi ot'
ibeir landa, leneracuta, gooda, cbaltellaor morc-
aUet Ibrfaulted to hia majeatie, aud otherwise
punished conibrm to the aaid iiatote of Pm-
tnunire made in Epslaiid iu the sixleenlh year
of the reigne of BicnanI the second, lo the ex-
ample and terror of others, lo oommitt tha tike

Akxandtr Crmfurd'i Canfaiitin.

The shore named Alexander CrawfunI, nne
of tlic panneU judicially, in presence uf the
lords and ssbysen, acknowledges and confessea
the tybel), in so far ns relates to him, aud
hnmbli throws himtvlf in the kiiiz's mercy.

Sit Subscribitur,- Alex. CiuwTuRn.

Ad. Cockburne, 1. P. D.

Purttifri. — Sir Dmvid Dalri/mpU of Uailn,
barunel, his niajeiit} '• adrocale fur lua hifrhness
interctli sir JunMi SleicatI, bis majesty's ro-

llie Lybel being read and fully debate uva
*wc, JD presence of the nid lords, panoells,
and aaaysers, Ihe lords justice clerk and com-
niiniionera of justiciary, ordain both partiea to
giro ia (heir iabnnatiuis, Ihe pursuer lo gire
in hit, betwixt anil Wednewlay's night next,
and Ifae paDMltB to gire ia theirs, betwixt sod
Friitsy'a uighl IbereaAer in order to be re-
conled j and cootinaed (he dyai of ^e lai^
cauM! till Hotrfay oext at oyne o'dock, and
entained anysera and wiloenes to aiteod then,
Moll iimlartbe pun of one biiadred mcris.

Villuatt Hogg.

The Ktng't Advocate has raised a L\
Aire the lords of justiciary against it
John Grakame and William Hogtr, I
upon the fourth act first session nf her \i
jestie queen A nne'i parliament in Scolli
tiluled. Act against Leaaing Makers am
derers, and the acts therein recited, mni
cially reciting the worda of the 134 act,
meot 8th Jamea 6lh, aud also foundei
the late statute made iu the parliament o
Britain, iu the Cth year of her said late n
lied, Act for the Security of her m:
person and gnrerDroeot, S^. Where
ig*t other things provided. Thai
>n or persona ahall maliciously and d
reaching, teaching, or adiysed ap
ir, maintain, and affirm, that ihepr
prince of Wales, who now Styles himsi
of Great Britain, or king of England
amestheSrdi orkingofScol
of James the ath, has any r
I of these realms, erery such
shall incurrthe penalty of Praemunirs, (
to the act made in England in the
Richard (he 3d.

The L^bel subsumes, that the defem
guilty Ot the saids crimes, having u;
ISIh, or IGth of December last, drink
Pretender's heahh, under the name
James the 8lh, and also drauk to his
resturalion ; aud Ihe libel mentions,
words were pronounced loud niih
having hautboys playing, aud the di
showiti); other marks of joy, in upen o
aiiddeiyani»«f tlie laws generally m
ticularly above menlioDed. And that
fenders being surprised in the act by 1
guards, fled, but being incontinent pursi
were made prisoners. And concludes
which, they and each of Ihem are ^uill
art and part of the breadi of the said la
ought to be punished with the pains
And rarticularly with the pains ol' Pne
Tix. To be putt out of the king's ptotecl
each of their Isnda, tenerocnli, goods,
or moveables, tbrfanllcd to his majestit
The defender premised to his mate,
facts Ij belled being denyed, he (hong
self bound naverth^es* to declare, Iha'
could be proved, they amounted to a ti
imprudence, and mdiscietioa very-
worthy, but that erery act of imprudt
not amount to a crime pualaliable by la
And tberelore, the first defence waa
defender John Urabame was in drinl
degree, aa not to kaow or ictnember

It waa answered for th« pmaaui in
place, that by the coniBoa opinioB of
(he tfuilt of oimiBal tacbi ia iacnaaw
qnaS^ of dM pcriMs aguoit whan

^r drinking the Pretendcr^s Health,

A.D. 1715.

Mmmitted, aod other drcamttancei . Therefore

tfw same fact, which done against a person of

Ww condition, would import but a small con-

icBiptorimpnideiicenot punishable ; yet being

Ant aicaiDst a magistrate or person in dignity,

wwild lie crimiDal and punishable. Tlie same

MS vhick at one time might be innocent and

iaofleBHTe, am the drinking of a health, vet at

uMbv time may be criminal and punbnabie,

vbcB it is the noited badge and symbole of

fMfiirlbat are disaffected. The same facts

■M would inferr but a light dignity in thtf

SMBB sf a priTote person, when they come to

kipplyed to the state aod ilignity of a king,

if Ibrj be imprudent and hinme worthy, are

erinMsl. But more particnhrly, as to the de-

facB, it it answered, First, That drunkenness

ii BOt araperiy a defbnoe exclusive of the lyhel,

lbs only dfect U can have is to make an allc?ia-

lin sf the sentence or punbhment; drunken-

I not deny the crimes, but only excuses

to lessen the guilt : Ffor, it the fact

mnese Hid affinti an exemption to eleid

ibe Ifbel, it would inTile men to commit crimes,

fir it were easy for a man that is embittered

vi^ a^ rooted malice to get himself drunk,

~ ' in that stale to perpetrate the greater

My, Drunkenness is not relevant even to

ilsia ao alleviation of the sentence, for drink-

>if to excesa is not only an imorality, but

is a crime, and he that is drunk

re illicit^,' which certainly can

I bim a legal exemption, cither

the lybel, nor for alleviating the punish-

3tfy, The drunkenness has by the custome
•t Maa all nations, lieen admittc<l as an allc-
viuMaia cases capital!, that can take no place
bar, ferasae of the acts ly belled on inflict the
laasfdMi. But,

<lbfy, Drimkenness is not relevantly pro-
pnifd even lor alleviation, because it is then
*bIv relevant, when it is alled^ed to have been
^ ibst degree, as to deprive the defender of liis
Jid^ament and senses. But the lybel mcntimis
ftcts that exclude the possibility of that de-
fect, viz : The defender came with baut-
kyi to the place, and drink bciu^ brought to
wn, tlie said John Grahamc called out The
bi^ beahh, Crawford another of the company,
crvcd out What king, king Janirs tliR 8th ?
iipos which the said Grahame and Hogpr, as
vtU as Crawfurd, drunk to the health of king
JiBMs the 8th, and after that proceeded to
^ak to bis happy resluration. And when the
fttsrds came up, he had his senses fresh enough
knin. aod emleavour to make his e!>cape. If
1^ facts or the substance of them be proven,
Hibey are ly belled, it were in vain, or indeed
to lay a soare'for perjury, to allow the defender
h pove that he was dead or stupid drnnk.
^ therefore the Brst defence ought to be re-

Aad whereai the defender excuses his not
p*"iug the crime, laying the blame upon
■> kaag drunk, and ha? iog forgote ; the pur-

suer cannot hut observe, that this excuse is but
an aggravation or mark of obstinacy, for the
defender had never time to forget, he was taken
* in flagranti delicto,' and keept prisoner till
next day that he was examined upon the facts
in his presence, aflter which he was committed
and remained priboner till he was indictcil.
Where then was there time for him to forgett ?
He was certainly sensible of his guilt whence
fled, he nas taken in his flight, and has still
been keept in remembrance of it.

But since the defender thinks, that his in-
sulting of the government may be evaded or
excused, it reraams now, that the lords of jus-
ticiary do convince him of the contrary, by
maintaining the vigour of public discipline, for
indeed otherwise his tryal might have tliis bad
effect, viz. To shew how cheap and easy the like
offence may be committed in time coming,
which might grow into more incurable dis-
orders.

The 9d deffence proponed was, that the
lybel is founded upon the acts of parliament of
Scotland against leasing makins^, &c. And also
upon the statute of Great Britam the 6th of the
late queen, but the judj>;es cannot proceed upon
these laws joyntly, Uf cause the punishments
are different. And also because, where any
new penal law is made for punishing any tact
punishable by a former law, the former law is
su^ierseded eo iptOt and since a man cannot be
twice punished for the same crime, he mnstbe
punished on the last.

And to confirm this more, it was urged for
the defender, that by the late act Anno 6to
Regime, there are several things introduced for
the benetitc of the subject, whereof the subject
would be deprived if they were to be tryed on
the old acts concerning Icasincr makeing. As
for instance the new act requires a malicious
direct deed, by advised speaking, declaiiing,
raaintainiiicT) and a!Hrmin«^. And it provide:^,
that no person shall he prosecuted upon that act
for any words spoken, iniless inlbrniation he
given upon outh, wiiliin three days after the
words spoken, and the prosciMitiou be within -
three months iifiersueli inrnrmalion. And it is
agaiii St reason, that upon the same facts there
should he temporary actions and perpetual
actions.

It was answered for the pursuer. First, that
he cannot btit observe, tiiat the crime in ques-
tion tieinti^ a contempt of the kin>;V :i>ithority
and title, the very defence founded upon the
merciful statutes pasi since the Revolution, is
an a;7gravation of the crime. Ttiere have been
times when the least offence has been strained
to be the highest treason, or drawn within the
compass of severest laws, tlie eon.vtant character
of tyrranic. But now by God's good provi-
dence we are under a •gentler aduiinistiatrun,
the government and tlie petqde are in tiie same
interest, and the laws ihiiionstrate nmlual con-
fidence, the lirst consiMjuence of so happy a
statute.

But this gentlene«-'s of the laws is not to ex-
pose them to elusion, the laws ore the mora

1 GEORGE I.

Trial of John Graham and othergf

particularly to be observed , because the pooish-
inents hare beeu soiUned both in the case of
leasing niakin^r, and in that of the statute of the
6th of the queen, and Uie same fact must be a
more attrocious crime, when committed a^inst
so ijrentle a government, than it would be in the
statute of rigour and terrour.

This being premised, it is more particularly
answered, that the defence is irrelevant, ffor,
First, it is no new thing, that several acts of
parliament should be msuie fcA- restraining one
and the same delict, and that these severu acts
should be made the major proposition of a lybel
against offenders, a matter so nottour, that it
needs no particular instance to clear it.

Sdly. The general rules of law in tliat case
are against the defence, for though it be a
maxiuie that * posteriores leges derogant pri-

* oribus,' yet that is only wliere the posterior
law abrogates or is directly contrary to the
former, for otherwise a law made, or a law in
possession is more tioivourable than a new law- ;
the law is jealous of alterations, and admitts of
them only in cases of necessity, and so far as
the necessity requires. And therefore the civil
law has excellently defined, that prior laws are
drawn to the posterior, yet it subjoins the ge-
neral caveat, *• Sed et posteriores leges ad pri-

* ores pertinent nisi contrariee sint. L. 26, 27,
' 28 ft*, de Legibus.' And very agreeable to this
and to the present case, Hermo;;enianus and
Paulus the lawicrs have said, ' Cum ex unode-
' lido plures nascuntur actiones, sicut evenit

* cum arbures furtim esse dicuutur omnibus
' experiri permitti post magnas varietates obti •

* nuit. L. 32 sect, de oblig. 6c actQuotiens Lex

* obligationem introducit nisi si nominatim ca-

* verit, ut sola ea actione utamur, Eliam veteres

* eo nomine actiones comuetere si ex eodem

* facto duse competant actiones, postea Judicis
< potius partes esse, ut quo plus ea sit in reliqua

* actione id actor ferat. Si tan turn idem ut
' minus id consequatur L. 4 eod.' And so the
same Paulus,' Si furtim arbores ccesoe sint et

* ex Lege Aquiliii et ex duodecim tabularum

* dandam actionem Labro ait. Sed Trebatius,

* ita utrainquc dandam ut judex in |K>steriore

* detlucat, id quod ex prima conseciita sit et reli-

* qua CFUudemuct,' and it is observable, that the

* actio arborum furtim caesarum,* and the ac-
tion * ex len^e Aquilia' \t ere both penal, and bad
ditferciit penalties. That if the ' Lex Aquilia'
f^'as to repair tlie damnage, according as the
thing had been of greatest value for a moneth
before tlie thing happened, which very often
was much more than the real value, and the
action * arborum furtim ctesarum' was given
in ^ Duplum deductfi jirius arboris cmuD esti-

* matione/ Nay, iH'sides these actions, there
was yet a further punishment upon a separate
fundation, ' secunuuiii est autem eos qui ar-

* Iwres et maxime vites cocciderint, etiam tan-

* qiiam latrones puniri. L. 2il eod.'

To apply this to the present case, whereas
the defender pretends, that the former laws
concerned leasing mti king are supersedeil by the
new hiw, Audo 6lo Kegine, if the said statute

Anno 6to Regins does extend lothe pamshB^
of the same facts: ^

It is answered, First, that the defeoder'Bpil
position is contrair to the authority of theMl
said laws and reason itself.

3ndly. If the facts shall be foond^to
within the statute Anno 6to Regine,
cording to the principles of the CivillAWi
mentioned, the defenders being puDisbed'
form to the statute Preemunire, there
no occasion for the judges lo apply the
mentof the laws made against teanog
unless the circumstances being proven
cious, shall deserve a further correctioii,
that case upon tlie fundation of the lawi i
cited, the judge is to proceed.

And Sdly. It was necessary to foml*
lybel upon both laws, because the act flf
6th of the queen being a new statute, iti
easily forseen, the defenders would
anxiously to alledge that the facta lyl
not fall under the compass of that stati
indeed they have done, tho without aoy i
foundation.

And whereas it was further alledgal,
the statute of the 6th of the queen, oovla
benefite to the subject, which cannot ba ckHi
by trying the crime on the old statotea agiU
leasing making : "

It is answered, that the defender miilakl
for first as to the words, ' malidontly t
rectly by speaking, shall maintain, dedart^ll
afiirm ;' these contain no new benefit tolhtliri
ject, for all lawsimposing pains upon any fiMl<
offence, do expressly or tacitly require MiiB
* deliberatum propositum,' and where th» i
fence consists in words, it must be by flidi
taining, declaring and affirming, wbicb M
tains denying in the sense of the atatnlei i
appears by the words that immediately Mill
' and affirm that our soveraign lady toe quo
is not, &c. *and therefore these words osnli
nothing new*

2dly. As to the provision, that no pcnkw tb
be prosecuted but upon bwom informalioa
words within three dayes at\er they areipokl
and pn»secuted within three monetbs after i
formation :

It is answered (Imu) that the words of t
statute are, ^ that none be prosecuted by veil
of this act, and that none be convicted by vcft
of this act.' — And therefore indeed, if the m
suit were founded upon a sworn infbnDatM
and only upon that act, sometliing mi^t
said, why the defender should not iDCurr 1
penalty of Premunire, unless the sworo infi
mation had been within three days, and 1
prosecution within three months.

But the case is, the defender was takea
Jiugranti delicto^ brought prisoner in lo I
guard, where he was keept till he was broii|
before a magistrate, and there the wiinca
were bnm!y;ht face to face to declare tbefae
in order to the question, whether he sbouM
set at liberty or committed. The facta appoi
iog nottour, as far as in that case was aeo
sary , in order to Ibe quealion ot' impriaaanni

firimUmgike Pretendet^s Heahh.

JL D. 1715.

[Id

vhere be renwiocd till
ded. If ibe ooannittmeDt wai legtl
ihoB If ifd flagranti delicto^ then
MM Biol ccrtaiDly be legal, be-
fcomautud for tbil crime, be cid-
end bat by doe ooune of law.
Me vf the statute !■» wbere words
,aad are not presently cballenged,
(I most befin by a sworn loforma-
tbree dnyes, for these kinds of iii-
if the natnre of iiiinries by the civil
I good rsmon the action ceased if
nbiio injnriB.' That is, ' si quis
d animnm non revoea? erit.^— The
iks, that mnoiag of three days,
f sworn information against the of-
krse months without prosecntioo, is
ffidence that the go? emnient passes
lory, so far as not to insist upon the
nemunire. But the defender being
^roBli deUetOj is not within the cage
rtsion ; the ^vemment instantly
d animum injuriam,' the offender
a the offence, and there needed no
to be sworn against him, but if
Ibe same fiM:t bemg punishable by
England, as a misdemanour, as un-
it is, the criminal pursuit tor such
or still remains, but must be prose -
irding to the laws of Scotland, and
I can only be upon the foundation of
psuist leasing inakiug.
lap then what concerns the Answer
EMoe, it is plain, that tbe lybel as it
d, is Tery regular and well founded,
kt laws of leasing making are not
Ihj the act of ibe 6ih of the queen :
wefore it was necessary to l^^bel
I iki, that the defender being tryed
smes of leasing making, suffers no
ir4unage.

ervas, it was further alledged, that
Iocs only conclude the pains of tbe
lute.

swered, that the lybel is expressly
I tbe acu of leasing making, and in
Dptioo says, * it is of verity,.that the
Niers sre guilty actois art and part of
d crimes,' and after the narration of
t of tbe facts, follows these words * in
mce and contempt of the laiis gene-
particularly above mentioned' and a
', * they and each of them are guilty
ich of tbe said lans which or any
>f being found proven, they ought to
d with tbe pains of law.'
reason why the pains of Premunire
particularly expressed, is because the
9g new and less known, and referring
i in the time of Richard the 2od, It
iita favour to the defenders to trans-
r that statute the words which con-
inishment. But from thence to re-'
ybel to the case of tbe statute of the
i|oeen, is so manifestly against the
e lybel, that the defenders must be
1 M what the lawyer says, ** L. 19

sect ad exhibenduro non oportere. Jos civile
calumniari, ueq. verba captari, sed qua mente
quid dioeretur anima advertere convenire."

The third defence proponed was, that the
lybel is founded on the acts of leasing malEing,
and the foresaid statute of the 6ih of tbe late

Jjueen. And Ua fit, that the facts lybelled,
ail not within any of these statutes.

And first, the ststute Anno Sexto ReginsB is
in these words, that if any person or persons,
shall maliciously and directly by preaching,
teaching or advysed speaking, declare, main-
tain and affirm, that the pretended prince of
Wales hath any right or title to tbe crown ; it
is agreed, say the defenders, that here is no
preaching or teaching, tbe question is as to ad-
vysed speaking * nuda emissio verborum„' and
there the benignity of the lawgiver, knowing
how much men are liable to escapes without
malice or premeditation ;

8do. How apt witorssesare to mistake words
or to forget when things are not recently
brou^t to prosecution. Therefore the law
requu^ these qualities, First, that the words
be spoken maliciously. 2ndly, Directly. Sdly,
Advisedly, and 4tbly, That this may tbe more
clearly appear, the words are ** by advysed
speakmg,declare, maintain and affirm," declare,
that is, openly and publicly, maintain, in tbe
sense of the £n:;lisn law, is by argument to
defend or to sup|K>rt, affirm, is to conclude and
plainly to assert, and all these must concurr.

Stio. Tbe information must be given within
three dayes, and tbe prosecution must be with-
in three months.

4to. The case of advysed speaking is sepa-
rated in the law from that of^ preaching and
teaching, for as to speaking, the information
must be sworn, and the pnisecution within the
time above mentioned. And in the first words
* shall by preaching, teaching, or advysed
speaking' there is s disjunctive particle (or) to
separate the case of speaking from the former
two, which confirms also, that the three qoalities
(declare, maintain and affirm) are to be taken
conjointly ; ffor the lawgri?er having used tbe
disjunctive particle so immediately before, would
certainly have repeated it there, if it had not
been intended that those three must concurr
joyntly.

And thus the defenders imagining, that they
have established the sense of the law, for ap*
plication pretend, that there was no malicious
speaking, nor is malice so much as lybelled,
nor any fact to qualifie it.

2ndo. There was no advysed speaking , tbe
defender being young, came to the street in the
beat of drink, and uttered the words lybelled.

3tio. There is no declaring, maintaining or
affirming, what is lybelled are transient words.

And as to the substance of the fact,

Ist. The drinking of a health to any body is
forbid by no law, and it is of itself innocent.

2do. The drinking a health to the king, not
adding of Great Britain, does not imply tbe
drinkmg of the Pretender^s health.

3tio. Tbe drinking to king James tbe 8tbr

•■V a*

?v. i»-<« : •« cv^me

;..c > y:«5*;i.\l io

.v.*

.. a: ^ Lzyti the

V ■•

. ■ u» j^ 4ttiritii:if

p«>. -«-' •

^ •-'*^

.« •

1. \

• ••\ « '

• \

» •.

Tiiat nfJuhn Graham and atherjf

that bdoDjf to it ; as for ioitance, ean the
lertioff ot the iisur|M;(l title adyjaedlv, bt
fcrentfrom doing it maJiciously ? Or ear
aawrtin|r ndvysedly and malicioutly be diSf
from doioflr it directly ? Can one inaiiitMi
declare what be does not alKirin.

It is then certain, that the worda of the
are to be taken in this sense, ?iz. The affin
ot' the title of the Pretender inferrs the jm
nient of the law, and because this araii
may be done by wry tin^ or speaking, bbA
S|)eakiui^ may be done by preacbiofr, toafll
or any other way, whereby in words th« M'
lion of tlie ofiendm is plainly aignified, tM
has made use of ? ariety of wonis, to nf
one and the same criiney for the crime dMi
consist in any form of pronouncing of OM
words ; it consists in tlie asserting of tlM
of the Pretender, whicli whoever doea m w
erer form, does maliciously, directly amI
vyscdiy, declare, maintain and affirm bia Hi

Sdly. Thai the circumNtanccs lyhelb
such an affirming, will apiiear to any mhm$
aiders,

First, tliere are certain facts to whicb t
tome hutii affixed a determined sense, and tl
is none whereof the use and meaning is ■
incootestediy uudersiood, than thatof drial
healths ; is any man ao ignorant as iiottoki
that tlie going to a publick place aud drink
the kiii;;'8 health, is a publick acknowlnl
ment of his authority, as well as a wish for
long life ? Is not the common form of ^L
live the king," a formula of homage km
both in sacred and prophane history P And
any more than the drinking of a health P JH
do their homnpfe by sivearing directly, th
that hare offices by taking the oaths ; bvt
body of the people have no other way of
pressing their homage, but that acclamaft
«< God save the king ;" it were fniitieaa lohi
more reasons in a plain case.

2iMy. As the drinking of the health ui
that designation and stylo, is in the cont
acceptance an acknowledgement of the I
tender *s title as king James, so the aMan
of that title is the cause of bis attainder ;
title of king James the eight, is one of
usurpations whereof the act complains,
the wonls are, *^ He takes the title oft' k
of 8cotland, by the name of James the eigl
and tiierefore the drinking of a health to ^
person under tliat name by a Scotsman M
the street of Edinburq^h, though he did not
the words ** of 8cotland," can inijiort notli
else, but t be drinking to his pros|ierity as fa
ing that right, wliidi is directly and malicioi
to affirm his title.

Sdly. The circuoostancet likewise coni
this, it was not affirming for argument si
there was no dispute in tlie case, it was not
t'>. lU wixsWr uiUtakcs the meaning of firming ex calart iracundir^ there wasno<|i
i»>i iUtM> M*veial wonls of malicious, I rel nor contradiction, it was a deed d«-iibera
ku( .iJmm-^I ^|M'aking, maintaining, de- done. The defender came with his aco
«mJ .tiiiiiniiivf, are no otherwise to be plices to a certain place of tlie street, when

. »i

v»

w^ »wh v aL<^iBi an

.••.- « J M v«r«2i firi-

V ..w-w- M in« crown

'^ r^at^% Bwf could

v«fi H Sviknil, be-

...... -^ .(-»&k9CkML«a and name

■ 'iNk 1'^ (» king James

... . . % -vtMi HuiiHi» *and tohia

... wi|^«'o M 4iti miog of Ilia

. . .w^ ^»i ■ "^ KNHUrary, it ira-

.. '•.-v» ■ ' t'.tiiriider baa no

...> :* s . uit by alawtobe

. .. * .. o . o. ««aru a person is

. .*,.tM V ffi^, AVI ,^ru/iir, that

. ..u .« -^ ^H SkV4.«nd is called a

„.v ***»• , I »^' ****>d * restoration'

. v%i\ .1... I'.vuuou, it is accord*

,..v.i«^ v* >^ >^*« t^* be taken in

A.I 4.S vi>t%Mr a crime.

.•.0 v«|iiM*aUy insist upon
uo w«»ids directly afBrao-
I. ,1 > i>v.viuk-r. It is butan af-
v.« M. M huh m matter cri-

. . ■ .vi > \c «usi»fr to this way

I «i .A* i'v*. .<aU put the defenders

I t«v*.«ia I i>i iiuw cited, ** non

. i\4:(> 1 ui iuN|ue verba cap-

..kv«(vi.l I'cviviur auiinadver-

i.i.H'i «*( AiuithiT maxim,

,. .1 .^.... ^.ii ul i.ii*it ipitid lex pro-

.vMi «%!%• «|ai sAUin verbis leges

> * . -v'i«uk«\'<iu," licz 'ii>, Hect.de

I.I ^i:t«thck part of tho law is so

\ > I .KiUiuii tsi in legem com-

^ii, ««iba Ir^isi aui|dexus contra

tcknuAu'M. lav {wuias incertaa

.«. K^Ai %%f (\Mitia juris scntentiam

• o i \%kU»\iM\\ iVsudulenter exou-

V i «\hI. . MUillhtti this was agree-

iti.i\ t*(* «i'i*u in the act 108,

Uui. •« iho I si, and others made

.iwM% I'i ilii> Acis of parliament.

.'.v ^Mtiicubily answered, to all

•^... I « iiuMis u|Kin tbo words of the

■UU'i't,

•( ii.'«vi wstt there n more plain,
■ ■■- , .l.kVi'i. iuU\seil, maintaiuing,
4.1 1 AUuiiiiu< llit> title of the Pre-

4i>

II'

i. 4« i.» ilio ipiality of the malice,

• « tvui4i ttkihs iiniMi, it is in law

oiti ihol.ici!i,aiul is uutby itself the

,MiA ilv. ttiau as they contain a de»
k.,>o\*i 4Ai'iHhouB fact with exaggentumi

thought fitt to baity he came with musick, I
the BDOMui timt in the iBonung might con

Jvr itiMng the PrOendet** Heabh.

A. D. 1715.

tl8

nw words nid to be spoken by the
lo not fkU under the description of that
eh CDsctSy That if any person shall
■ly and directly, by advysed speaking,
vaintaiD and amrm, that the pretend-
M if Wales, who now styles himself
Gnat Britain, or kin^r of England by the
f Jasiea the 3d, or king of Scotland by
m of James the 8, hath any right or
ibe crown of these realms, shall incurr
tkf of PrBmunire. And the drinking
James 8ih's health, and the drinking
■ppy restoration, is neither a malicious
d declaration, maintainance or affirma-
■i right and title to the crown of Great
, and the lybel does not bear, that these
acre maliciously spoken, or that the
dU thereby declare and maintain the
id prince of Wales had any right.
The set reqnires, that the words where-
right in the Pretender is affirmed, be
§j wpekt. But the pursuer has laid no
Mmi in his ly bel, firom whence it might
ltd, that these words were advysedly
« the ooDtrary, the pannel is brought
aajTi buxsain^, dancing on the streets
t low, all which circumstances are in-
■t with deliberate and advysed speak-
as to the other acts against leasing
and slanderers lybelled upon, it was al-
far the pannel. That these acts wera
■ded and inno? ate by the foresaid sta-
ihepariiament of Great Britain, in con-
sseT the 18th Article of the treaty of
whereby it was agreed. That the
hieb concern publick right, policy and
{■tesmeut (as the old Scots acts cor-
ds) sight he made the same thn;ughout
hsfe United Kingdome. And supposing
IS Scots acts were still in force, which
veil be admitted otf, for the reasons
dl attcrwanis be more fully cx)ilaii)cd,
' facts charged upon the pannel, are
danderini; the king to his sulijects, nor
fcts to ihe king, which is the descrip*
r law gives (<f leafiu;^ makin;^, and
y such slanderers d'j iucun- the peual-
Btioned in these actd.
is the sum of the defence, and therein
Del humbly conceives he is miicli siip-
by the great length to which tliis argu-
drawn, in the pleadings and inforiua-
B the other side in civil cases, which
all be comprehended under the express
of positive law ; there is place f(»r in-
5 and conjecture, but it is the happiness
constitution that such facts as are
d are plainly and clearly forbid by
notes, and therefore need little argu-
• make them plainer. The law speaks
H^ and if this is the case of our criminal
I general, it is more particularly to he
I, where the Uw concerns words said to
ken, and requires that such words be di-
i4 advysMlly emitted.
iihcr this fact charged on the pannel be
HL. XTII. ^

so or not, will appear from a more particular
examination of the answers made to his de-
fences in the method as they are set down in
thepnrsne^ information.

The pannel then in the first place having al»
ledged, that he was in drink the time when h%
is said to have spoke the words labelled ; the
pursuer premises to the answer a general ob-
servation, that crimes are aggravated or less-
ned with respect to the quality of the persons
against whom they are cumniittetl, and the ob-
servation is certamly just, but then the law
upon which the party offending is to be con-
vict, mnst first make the fact a crime, and
that is the poynt which the pursuer is to make
out ; and here the pannel would not be under-
stood, as if he meant that the fact charged
against him was not an offence, but what hia
concludes is, that it is not an offence falling
under the description of tbe laws mentioned in
the lybel, and even though it were, the de-
fence of drunkenness is relevant totally to ex*
elude the lybel, and nota%an alleviation only.

For tho' as the pursuer observes, drun-
kenness does not take off the fact, yet it
takes off the greatest crimes as much ais
fnry of fatuity, because such persons are
incapable to consent or to adhibite a free act of
the will, but there can be no doubt in this mat-
ter if the natura of tbe libel is consideredp
which is laid against the pannel upon a statute
requiring malicious and advyscd speaking.
And therefore it is, that our famous lawier sir
George M'Kenzie, in his observations upon the
act 'i, scss. pari. 1st Charles 3d, entitled, Act
for Preservation of his Majestiu*s person, where
the same \tcrds of pn^achingaud malicious and
advysed speaking, wJKjrcby a pnrly expressctl
cr declared his treasonable intentions in the
matters by that law forbid is dticlared treason,
Sci3's, that .such as wercdrnnh when tliey spoke
those words, are not punishable by this act.

lint tbe pursuer says, dnmkenness is not re«
Icvantly proponed, because the nannel does not
alledgc he was drunk to that degree, as to he
deprived o\'\\is judij^enicnt and senses.

It is answered, that the Defence nreds not be
so qualified, because the fact objected oj^ainst
him is malicious and advysed speaking, which
any degree of drunkenness is sufUcieut to ex-
clude, so as to save the defender from being
convict upon the laws lybellcd upon. And the
insinuation, that the paunel coulrl not be drunk,
because he was ubio to go oU' when the city
guards appeared, is i.ot concluding, unless
the pursuer subsume, that every party who
walks is not drunk, and is capable of deliberate
I thinking and speaking, which the pannel cannot
adniitt.

The order nf the Defence and pleading
leads the pannel in the next place to take notice
of the Answer, to u hat was objected against
'the defect of the ]>ursuer's lybel, in so far as
it is founded upon the Brilish statute, w hich
liears that no person shall be prosecute by
vertue of that act for any words s[K)ken, unless
the information of such words be giveu upoa

15]

1 GEORGE L

Trial of John Graham and otkerif

oountry of England or councellon thereof,
tendioif to the remembrance of ancieut grudjures,
whereby hatred may be fof^tered, and misiike-
ing raised between his majestie's subjects of
this island, is made criminal under the name of
leasing making. So that there can be noUiing
more evident, than that the crime of leasing
making consists in uttering false and scanda-
lous speeches, tending to stirr up his majesties
subjects thereby, to mislikeing, sedition, un-
quietness, and to cast off their due obedience to
tlieir kintr, to their peril and tinsel.

2dlv, The facts 1y belled are such, for what
speech or deed can shew more contempt to the
majestie of the king, or what can more endan-
ger his estate than the publickly owning the
title of another, and wishing his happy restu-
ration ? What can more stirr up the people
against bis lawful authority, than the disputing
ot his title? Or what can more clearly invite an
unnatural invasion, whereby this country should
be made the scene of blood, cruelty and vasta- -
tion at the hands of people whose relipon di-
vest them of all faith, mercy and pity, to those
whom they falsely reckon hereticks, than the
publick profession of a desire to have a declared
enemy to our religion and our happy constitu-
tion, upon which our laws and liberties depend,
restored ?

It scarce deserves mentioning what the de-
fender so often observed. That the acts against
leasinc^ making were odious, for so they were
indeed, as all powers in the hands of enemies,
or the hands of a government engaged by reli-
gion and mistaken principles, against tlie inte-
rest sacred and civil of the people, then indeed
the acts of leasing making were strained. But
since the happy llevoTution that grivance
amongst many others has been removed.
What was useful in the acts of leasing making,
and indeeil all that concerns the present ques-
tion, is preserved by the act 4th pari. 1703, the
bitterness of the punishment is restrained, and
80 the odioasness of the law taken off. Nor
can these laws be said to be old and obsolete,
which have been so lately under the considera-
tion of the legislature and approven.

To conclude then in the words of the for-
cited 134 act of the 8th pari. Ja. 6th> tho' his
majestie continues in love and clemencie to-
wards all his good subjects, and most willingly
seeks the safety and preservation of tbem all,
and his servants in his name proceed with the
same regret against the guilty, vet seeing the
law and authority must be vindicated against
open insults obstinately justified, there can be
no doubt but the Court will sustain the lybel,
and find that the drinking a health to king James
the eight in the open streets with huzzas, and
the drinking of the said health, or to bis
happy resturation, relevant to make the defen-
ders guilty of the crimes and according to laws
libelled.

This debate being a\ to Af r. Graham for
whom compearance only was made, and Mr.
Hogg the other defender having for himself
«nv«d the btneata of tlM same 4mncei wludi

the Court allowed, the tiOcd Advoc
peated the same answers.

Sic Subscribitur^ David Dalbti

February ath^ 1715.

Information for John Grahame, m
James Grahame of Newtmm

AGAINST

His Majestie*8 Advocate.

His Mafettie^t AdvocatehnM been pk
raise and for liis higlmess interetit, to iai
criminal process before the lords commii
of justiciary, lybelling upon tfae*acts of ll
liament of Scotland, made against I
makers and slanderers ; but more cs^
upon the statute made in the parlisa
Great Britain in the 6th year of tbehte
intituled, '< Act for the Security of her J
tie's Person and Government." WbfftJ
amongst other tbinirs enacted, That' if ai
son or persons, shall malicioualy and i
by preaching, teaching or advyscdspc
declare, maintain and amrm, that the pic
prince of Wales, who now styles bimici
of Great Britain, or kinf of Engtend I
name of James the third, or king of 8i
by the name of James the eight, hi
right or title to the crown of these i
every such person shall incurr the pel
Praemunire. And subsuming that then
guilty of these crimes, in so far as M
to the health of king James the eigk
to the happy resturation of the said I
der, under the name of James the
Which words, to the health of kinglH
eight, and to the happy resturation d
James the eight, he duf pronounce all
huzza'd at each health, dancing at th
time, and having hautboys playing. Ai
eluding the pannel is guilty of tlie hn
the said laws, and therefore ought to
nished with the pains of law, aiid partii
that he ought to be put out of his majeslt
tection and his lands, tenements, goodi
tells, or otiier moveables Ibrfaulted.

It may appear even from the lybi
whatever was done by the pannel tl
therein mentioned, was the conseqaei
debauch by too much drinkmg, and node
act So that the pannel not remembris
had passed, denyed the Ivbel ; and in
fence, it was alledged. That hownvcr I
charged upon him, was a very great li
indecency, yet he could not ior il bn <
u|ion the laws generally or speciaUj M
in the libel.

For Imo. As to the act ainde is Nm
ment of Great Britain, entitokd,- ^MM
Security of her Miyestie'i ppnBB.«Mi
ment," tbe necessary wm
cuting any person np^
spoken, were not in lb
been no infonBti*
oath, I0opa«

^ dHMUHg ike Praentla*s Heabh.

A. D. 1715.

[18

?be words nid to be spoken by the
to not fidl uodcr the description of that
leh enacts, That if any person shall
■ly and directly, by advysed speaking^,
vuntain and affirm, that the pretcod-
Hs of Wales, who now styles himself
I Gmt Britain, or kin^ of Enfi^Iand by the
tf Jioies the 3d, or kmg of Scotland by
■e of James the 8, hath any right or
(ihe crown of these realms, shall incurr
Mkf of PrsBmunire. And the drinking
I Jtmes Bih's health, and the drinking
■fpy restoration, ii neither a malicious
net declaration, maintainance or affirma-
fkii right and title to the crown of Great
lyisd the l^hel does not bear, that these
vera maliciously spoken, or that the
I id thereby declare and maintain the
M prince of Wales had any riffbt.
i Tbe act reqnires, that the words where-
liifbt in the Pretender is affirmed, be
rif ipoke. But the pursuer has laid no
blNB in hb lybel, from whence it might
M, that these words were advysedly
I m the contrary, the pannel is brought
ikiw, huzzaing, dancing on the streets
b ttt, all which circumstances are in-
tBt wiih deliberate and advysed speak-

1 ■ to the other acts against leasing
■isd ibnderers ly belled upon, it was al-
i ftr the pannel. That these acts were
WM and innof ate by the foresaid sta-
'ikptriiaroent of Great Britain, in con-
Mi «f the 18th Article of the treaty of
■i vbereby it was agreed, That the
'*Ucli concern nublick right, policy and
' fwnoieiit (as the old Scots acts cer-
7di)Bi^it be made the same tlirciigliout
"^Uaited Kingdome. And supposing
IfcffipDU acts were still in I'oroe, which
' 'cit be admitted otT, for the reasons
UH afterwards be more fully ex|)laliied,
^ ficts diarged upon the pannel, are
'|diDderin<; tlie king to his suhjects, nor
^ects to the king, which is the dcscrip*
ir law gives oV leafing making, and
9 lurh slanderers d'j iuciirr the peual-
ntionrd in these acts.
>ii Ibe sum of the defence, and therein
Hifl bambly conceives he is much sup-
by the great length to which this argu-
I drawn, in the pleadings and informa-
a the other side in civil cases, which
ill be comprehended under the express
of positife law ; there is place fur in-
I ind conjecture, but it is the happiness
coostitutioo that such facts as are
fl wn plainlv and clearly forbid by
Mhl and therrfhre need little argtt->
I Mt Ihem plainer. The law incSkt
iriUi«tfiecMt«rmir '-' -'

■0 or not, will appear from a more particular
examination of the answers made to his de-
fences in the method as they are set down in
thepursne^ information.

The pannel then in the first place baring al»
ledged, that he was in drink the time when ha
is said to have spoke the words labelled ; the
pursuer premises to the answer a general ob-
servation, that crimes are aggravateil or less«
ned with respect to the quality of the persona
against whom they are cumniittetl, and the ob-
servation is certamly just, but then the law
upon which the party offi:nding is to be con-
vict, must first make the fact a crime, and
that is the poynt which the pursuer is to make
out ; and here the pannel would not be under*
stood, as if he meant that tlie fact charged
against him was not an ofll'uce, but ^vhut he
concludes is, that it is not an offence falling
under the description of the laws mentioned in
the lybel, and even though it were, the de-
fence of drunkenness is relevant totally to ex-
clude the lybel, and nota%an alleviation only.

For tho' as the pursuer observes, drun-
kenness does not take off the fact, yet it
takes off the greatest crimes as much as
fury of fatuity, because such persons are
incapable to consent or to adiiibite a free aet af
the will, but there can be no doubt in this mft-
ter if the nature of the libel is conridcrcd^
which is laid against the pannel upon a
requiring malicious and advysed ip
And therefore it is, that oar fiunous k
George M*Kenzic, in his observations
act 2, scss. pari. 1st Charles 3d
for Preservation of his Majestic^s perm v**^
the same ucrds of preaching and malidfV''
advysed speaking, wlitirehy a p?rtj ajhw*"
or declared his treasonable intendnv >" ^
matters by that law forbid is dedand m*"
says, that such as were dnink vba fb^ ^"^
those words, are not punishable Hy cliif «•

lint the pursuer says, drunkaii^' '* ""
Icvautly proponed, because •^ ■■"■*' '^
a!ledgc he was drunk to
deprived of his judgemeot

it is answered, that tbe '
so qualified, because
him is malicious and
any degree of dm
elude, 80 as to
convict upon tbe
insinuation, that
because he

int

X J

ip.

osi-

^, or
said,

1 GEORGE I.

Trial of John Graham and otheri.

going debile thereniwD, Tlicy find the uiJ

Kbtirili oreachof them, thnrdriokiugtrf* king
mes tlie ei(;ht hia health, ordrinking tokicg
James the eight his hnppy lestaratimi, at lite
time labelled, tetmntim, rt-IeraDt to infcrr fen
aiUtrwy pimilbment. And repel] the defencti
nroponed lor the said uaaDells against the said
lybet as mtrictnl, and remitt tbe pannells and
lybell a* fonnd relevant to the knowledge of an
JJiRze.

Sic Subieribilur, Ad. Cockbdrkb. I. P. D.

Sir DaTid Dalrymple of Hailet, hu mqjectie'g
•ilTOCtt for his majeatie's interest. Judicially re-
BIricts lui lybel and caDclusiao thereof 1« an
ai-bhruy paoishmeoL

Sk &ibttribitur, Datid Dalryhpia

Diet coDlianed till next day at 9 o'clock.
FcinMf^ll, 1T15.

John Grahame, AUlander Craa/urd, and
Mr. IVilliam Hog^, inilicted and accuied at th-e
iottaiice of bis roajestie's adrocaie/or his high-
Ma' interest ut in diebut pmcedenlibui.

Sir William Hensies, of Glatdstaines.

Oeorge lind, of Georgie.

Thomas Faicbolm, of Greenhill.

FUrick M'Dowal, tnercfasnt in Edinbur^'b.

John Bell, merchant there,

Jehu Thomion, mercbaDt in EiUnborgh,

John Colqaboou, of Tilliebewn. j

John Martiue, of Litlleeires.

Alexander Waddel of Holliubum.

James KI'Millan, merchant in Edinburgh.

Patrick Gibson, merchant in Edinburgh.

Akxaoder Clark, of Glaadarock.

■ Priogle, of Symin^un.

John HultoD, tueccbant m Edinburgh.

John Lesdy, merchant there.

tbem repeat the ivords, but sat Air' GrahM
putthecsf ti) bi* head, and dnnkoulthedria
Depones, that he nj no wore peraon* dancii
but the paoDelU, but that tjiere were oths
looking on . Cotus tcienti* ptiUt. And thia
the troth aa he shall answer to God, and i
pones he cannot write.
Sic SttbKribitur, An, Cocxbcbne, I. P.]

jl/emn^cr iror^ Bouldier in IhecitjgBM
of Edinburgh, aged (wcuty Etvea yevt, i
thereby, marned, solemnly Eworn, purged m
inteiTugate ut lupra. Depones, That upon d
sixteenth day of December last, betwixt fti
and five a'clock in tbe mnrniDg, he did sea M
Grahame and Hr. Hogg, two of the paonell
dancing niion tbe street wiih Ur. Craw^
-■ ' ■ehau ■ ■ ""

rhyle I

Her Majestie's Advocat and solicitor for Pro-
bation adduced Mr. Crawford's Confeaaion.
Ac also adduced the witnesses atler depODrng,

David Smith, indwdler in Edinburgh, and
chair-carrier there, aged fourly thrtc .years
or thereby, narried, solemaly Bwom, purged
of malice, nreJuJicr, and partial council, exa-
mined and interrogate, depones, That the
month of December last, in a morning hetnixt
four nod fire a'clock, he did see tbe psnnells
Hr. Grahame and Mr. H<^g by the street,
dancing to the hautboys, ann when they bad
donedancing, the deponent saw a woman come
out of a cellar with a stonp, and saw Mr. Gia-
hame take the stoup and a«ap, and fill a drink,
and heard him utter tbeae worda, Here is the
bing'a health, and some other of the company
Mked what king t But the deponent cannot tie
poaitiveby whom, king Jameslhe eights' imjib.
AndbdngiiitanogmleiforiMtbeff^Hr. Gra-
fcuH fli Hr. H<nr pat tbe cap M tbeir beads,

itboys were iilnying, and did si
Mr' Crawford with a dish in bis hand, M
Cranfnrd say.Tbia is the kiug's health, and U
Grahame aiuwered, God damn y tu, what king
and heard Mr. Crawfurd reply, KiogJomeaU
eight, and saw lilm drink the liquor in tfc
dish, but did not bear Mr. Grahatne name tl
heahb of king James the eight, neither bear
any of the pannells name ahcaltl) tothehappi
resturation of king James the eight. And m
mediately tbe deponent went away and left tb
company. Causa tcicnlia, the deponent be
ingupon tbe guard thatnii^bl, happened to b
on tbe street, and heiird end suw as he baa do
poned. And tliii is tbe truth as he shall ut
Hwer to God. And depones he cannot wriia
And fnrder depones that he saw Mr. Graham
have tbe atoup in his band, and fill tlie drink
in tbe dish, which Mr. Crawfurd had in hii
l»nd. Aud this is also llie truth as he sfaali
luiBtrer to God.

•Sic Snburibitur, Gilb. Eliot.

Jamet Malcolm, souldier in the city guards
aged fourty four years, or thereby, manied, so-
lemnly sworn, pucgcd of malice and prejudice,
interrogate, depones. That some lime in ibl
month of December hist, about tour or fin
a'clock in the morning, The deponent saw tbi
three pannelti steniling on tbe high street ol
lidinburgli, near the Trnn, and the said psoneUi
had a cbopine stoup snd a cap amongst tbem,
and the deponent heard Mr. GriLhante thepan-
i^et drinkto the health of king James tbe ei^ht,
t'Ul cannot particularly Icll whether any ol the

had uttered Ibese words, he pointed
It Mr. Grahame. Caum tciealitr, the depo«
:ieot was on the guard tbsl night, nnd was gi^
ng down with a watch coat to one of nil
jiimotades that stood centry near the pUca
.vhere the pannells were. And this is the tratk
la he shall answer to God.

Sic Subtcribilur, 3 ahem Malcolm.
Ja. H'Kcnhk,

.itiKimCBilUaw,aeiieantintbecityguuia
aged fifty yean, or tbaraby, Bairied, aoMBoty

Trial of Major OnSt/m

A. D. 1726.

[SO

mn, jpvgf^ and iDtei/vgate, de|Km8, that be-

iviit bar mod fire in the morDing of some

ter in December last, the deponent was

olM by a oeolioell in the flfuard dour to go

^iwato'Miliis sc|uare, where there were some

padcnKB drinking to the health of kin^ James

the cishi, lod aat the de[ionetit waa at the ^lard

ter, ae beanl some perrons crying, To the

VfiU, »* the iiappy resturation, and immed-

^klrfr tbe deponent went in to bring out a

fvir'sf the foiurd with their arms, and with

itifirty went towanis Milns square, and the

If fledy mnd the deponent and the party

"them, aud seized the pannclls in a stair.

Kienti^ pqtet. And this is the truth as

hi Ml answer to God.

Sk Sutneribiiurf Andrew Castlelaw.

\V. Calderwood.

1W AfSTze ordained to enclose and return
thsicxdict next day at 9 o'clock.

February 13,1715.

£lffBJ|*

JUa Crahamcj Alexander Craufurd^ and
k.lTU/iaia Hoeg,

Ik sud day the persons who past upon the
I^Kof the said pannells returned their Ver-
ity is presence of the said lords, whereof the
Wfettom,

Eoc^BURCH, February 11, 17 J 5.

1Wabo\-e Aaayse ha? iuf; inclosed, did choyse
arl^iliiaoi Meozies, of Glaidstaius, to br their
dasedkN-, and Thomas Fairholm, of Grren-
hAI, tbeir clerk. And hnring considered the
i^luihe i:istuncc of Mr Oavid I)nli-vii)|ilr,
iUula.his innj^stics advocatfor liis liij^hness
>*^-< s^ainst Jolisi (^r.iliamr, Alcxamier
Lnz:jx. lad Mr. Willi-.m Ilopir. pamielis,
<M Lf'Ti: Janice Clerk uud Conniiisstonri's of
ivjfvii.v, their intpiloqiiitor thtT^'in, and de-
;««J:oc) of tiiu witnesses adduced a<rainst the

said John Grahame and Mr. William Hogg
with the judicial Confession emitted judiciaTly
by Alexander Craufiird, all in one voice find it
not proven, that John Grahame or Mr. William
Ho^rg, pannelU, did drink king James the eight
his health, nor did drink to kin:*: James the eight
his happy restoration. And find the Ivbel

tiroren against Alexander Crawfurd, pannel, by
lis judicial Confession. In witness whereof
thir presents are subscribed by our said chaa-
cellour and clerk.
Sic Subscribitur^ W. Menzies, Chancellor.

T. Fairiiolme, Cleric.

After op|>ening and reading of which Vjerdiel
of Assyze, the Lords Justice Clerk and Com-
missioners of Justiciary, in respect whereofp
assoilzie the said John Grahame and Mr. Wil-
liam Hogg, pannells, and dismiss them from
the barr.

Sic Subscribitur^ Ao. Cockburne, T. P. D.

February 31, 1715,

Intran'

Alexander Crawfurd yoongcr, of Manual*
milne.

The liOrds Justice Clerk and CommissioDerf
of Justiciary, havincc considered the Verdict of
Assyse returned upon the 12th day of Febmarr
instant, against the said Alexander Crawfurd,
pannel ; thev in restpecl thereof, by the month
of Charles Riuross, macer of court, fy ne and
amerciate the said Alexander Crawford, in the
sum of 5(;/. sterlinsr, to be payed to his majes-
tie*s rcecivor general for his majestic's use, be-
twixt and the 1st day of July next to come»
and ordain him t(i l)e cLrriud to prison until
he G^ive hoiid and sunificnt caution that hft
shall nir.kf! ) ayment of the said sum in manner
to r« a i d . — Sic Su hsrribi i u r^

A I). Coi;KRi;i{N. W. Calderwood.

Cxii.n. ]-'.i.i(>T. J. Hamilton.

Ja. 31* KlNZIC. I). fc)RMCINE.

*33. The Trial of Major John Oveby,* at the Sessions-House in
the Old-lJailey, before the Right Hon. Sir Francis Forbes,
kut. Lord-Mayor of London, Mr. IJaron Hale, Sir William
Thompson, knt. Recorder of London, and others his Majesty's
Justices, for the Murder of Wm. Gower, esq. : V> Gkorof. L
A. D. 172G.

John Oneby, of St. Martin's in the Fields,
est. was iu'Jicted, for that he, oti the 'Jnd day
if Ft^rruary, IJ C*>o. at the said |farish, felo-
■hhIv, iJluntarily, and ok' his malice fore-
ihsurht, nmlc an ass.-nilt upon one William

, esq. and that he the said John Oneli
*ttk a sword which lie then and there he

* See « Hum. 766. ft Lord lUym. 1485. 1

.n.

drawn in his riGflit hand, the said Willlara
Cj'iwer in and upon the left part of his belly,
near the navel, Icloniously, vulniitarily, and oi
his malice forcthonr^flit, fhd strike and thrust,
^i?in{7 tiic said ^Villiam (iouer, then and there,
with the said dniwn swonl, in and upon his
said left part of his helly. near the navel, a mor-
tal wotind of the lin^tli of one inch and a half,
and of the depth ol' len inches ; of which mor-
tal wound the said William Goner lived io »

313

IS GEORGE I.

TruU of Major Onehf,

langpiishiiig condition, from the 2nd day of Fe-
bruary to the 3rd day of the said February ;
on which 3rd day of February, the said Wil-
liam Gower, at tlie parish aforesaid, of the said
mortal wound did die ; and that the said John
Oneby, the said William Gowcr feloniously,
▼oluntarily, and of his malice forethought, did
kill and murder.'*

He was a second time hidicted, on the coro-
ner's inquisition, for the said murder.

Thomas Hnwkint. On the 2nd of February,
between nine and ten at night, Mr. Blunt, the
deceased, the prisoner and myself, went from
Will's coffee- house to the Castle tavern in
Dniry-laiie, where, in about half an hour, Mr.
Rich came to us. After the fourth bottle, the
prisoner called for a box and dice ; the drawer
said, they had none in the house; "Why
then," says the prisoner, ** bring the pepper-
box." The drawer brought it, and dice were
laid upon the table : but I don't know by whom.
We played low, nobody setting abo?e half a
guinea, and yet I had no great inclination to
game, and especially to set the prisoner ; and
therefore, aAer a trifling loss I declined the
play. The prisoner appeared di«|^usted at it,
and aHked me why I refused ? 1 told him I
should use m^ own pleasure, whether it was
agreeable to his h umour or not. The rest con -
tinued playing. The deceased lost SOf. Mr.
Rich said, "Who will set me three half
crowns?" Upon which the deceased took
something out of his pocket, and laid it on the
table, but concealed it with bis hand, and said,
" I'll set ye three pieces ;" and then taking his
hand avray, we saw three half- pence. This
was not offered to the prisoner ; but he appear-
ed to be much affronted. He said, " That is
▼ery impertinent to set three half- pence." The
deceased said, " What do you mean by imper-
tinent 1*" And the prisoner replied, " You are
an impertinent puppy ;" and presently snatch-
ed up a bottle, and threw it at the deceased's
bead, and it beat some i»owder out of his wig,
but did him no hurt. Ue, in return, tossed a
glass or a candlestick, I can't tell which, at the
prisoner; but it did not reach him. They
both rose up together, and went to their swords,
which hung up in the room. The deceased
being quickest, got his sword first, and drew it,
and stood still in a posture of defence, at a good
distance from the prisoner, who was advanc-
ing, and was drawing his sword to meet him ;
but Mr. Rich stepfied in between, and pre-
vented him. Then the deceased threw away
his sword, and they all sat down again, and
drank for about half an hour ; when the de-
ceased offering his h&nd to the prisoner, said,
" We have hsM words, mi^or, and you was the
aggressor; but let us agree." The prisoner
answered, "No, damn ye! I'll have your
Mood I" And then tummg to me, he said,
" Hawkins, yoa was the occasion of this."
•• Why then,^* says I, " if ye have done with
bim, and have any thing to say to me, I am
your inaOf and I'll see yon out.** " No,^ says

be, " I have another chap first." In ala
half an hour after this, which was near tk
in the morning, the company broke op. I it
out of the room first, and Mr. Blunt, and '.
Rich were next after me. When I casBe
the street it rained, and I run under a p*
house, where I stood a little while ; bafc
having a chair ready, and seeing none of"
company come out, I returned to the rc3
where Tlound the deccasetl wounded, and E
ing on a chnir in a languishing c^mdition.
died the next inoniiiig. 1 knew him intiaa
ly, and I don't believe that tliere was a swfl
teniftered man in the world.

John Rich. I, the prisoner, the deoea
and some others, went together te see the
tragedy of Hecuba ; we sa^ io the pit.
deceased and the prisoner appeared to be ^
friends all the time of the p)ay ; and as 80«
it was done I left them ; but met them ib
at the Castle tavern in about half an hour,
prisoner and I called for a box and dice ; im
not being to be had, he called for a pei}pcr—
and it was brought ; I saw dice lying upoK
table, but don't know how they came there
said. Let us play low. Some words pssK
tween the prisoner and Mr. Hawkins. K
down three half crowns. The major set
I threw. Seven was the main, and sis
chance. The deceased put down three J
pence ajgfainst me, and said. Here, I'll sei
three pieces. The prisoner damned liim,
called him an impertinent puppy. Sir, i
the deceased, I am not afraid ot ye, and be I
calls me a puppy is a scoundrel. At Ife
words, the prisoner threw a bottle at bia.
brushed his wig as it passeil, and he in lili
tossed a glass. They both gut up loffelfa
but the deceased being nimblest, jumped on
table, and reached his sw(»i d first ; and tl
slopping down, he drew, and stood ready to
feud himself, but made no offer to push,
the mean time, the prisoner took down
sword and cane, which hung t«>gether;
there lieing the table and a chair bt-tween th
he came round the table, and was going to
gage with tlie deceased ; but I stepped betn
them, told the prisoner, who was drawing
sword, if he made a longe, it must be thro
my body, which, as I was unarmed, wouh
wdful luunler. The deceased then threw a
his sword, and they lioth sat down again. '
deceased put his hand forward, and said, Cc
major, let us be reconciled, words in beat i
be forgot and forgiven. The prisoner ans^
ed, God damn you, you lie — I'll have i
blood, by God! And then, turning to*^
Hawkins, be said. This is all along of ^
Mr. Hawkins answei'cd. Then I am i
man; and the prisoner replied, No, 1 I
another chap to deal with first. When w
got up to go, the prisoner hung his great i
coat upon his shoulderS| and I think butli
it in one or two places. Mr. Hawbios i
out first, Mr. Blunt next, the deceased folk
biui ; I, the deceased, and tbe prisonw c
last : but he was hardly out of the rosniy «

ySr <X* MHrier 'tfWSBiuk Gmtr,

iuD. 1786.

t»

I li lh« tocMd, Htrk ye^ yoaafr
■ift vOTi wi* y«^ The deoettM
lAt ^mj loth re-cnlHcd the room.
r wi wiwrtiitoly tlittt flat IbcNml,
|rfnwiJi^iBd»kwrfitiBp €Q the
■blfWMed Wis mede Irf tbeBri-
llnffaTeiyheftTyiDiui. llr.Biiiiit
■H Mck, and endm?eured to vet in ;
llHiMdily epea the door; hot the
pnfjto our oMitlMice, tre made eo
Uk. Bhmc lliet, and 1 deae behind
kprnwer was then next to the door,
fcfailh hb aword drawn in his right
tflBalsf it heinff towards the deceas-
akMd 1^ the ahoaUer with his left
liUithedeoesard had then no aword
ai,ailsitt I saw none; and 1 soon
ibftsai it dose to the wainseot, be-
ftUtafsfthegreatond table. It was
rifnaqr four or fife inciies from the
H» diemed cloosd with the prisoner ;
khaauusr, as if he rather fell to-
bthnngh wcaknets, than otherwise^
IImhm think the woond was jpvett
pee came in. We pat him mtoa
itm far a smgeon. As I lidd np
hm part them, I felt a littie prielc
ipeiatybj the priaoner'a aword; bat
hws done aoeidentally. Mr. Blant
Miaw dapped his hand on bn bdlj.
hi vaidangmiisly wounded ; bat I
■t hy wbtt mesne. I told the pri-
■iws csaae out of the room* that I
i ha had kUled the deoeaatd ; No,
■j^ have done it, if I wouM ; bat
^fhghted him. But suppose I had
^ 1 know what I «lo in those afl&irs ;
I killed him to-night, in the heat of
ihoald have had the law on my side ;
d done it at any other time, it would
d like a set meetini|^, and not a ren-
I advised him, however, to make off,
the worst. 1 asked the deceased on
lid, if he received the wound fairly P
red, faintly, «* I think I did— but~I
r— what might have happened— if
ioi— come in."

Blunt, From the play we went to
thence to the Castle, where we were
f and triendly, till the dice were
We played low, but Mr. Hawkins
led ; upon which the prisoner said
IThy do you come into company,
won't do aA others do ? Mr. Uaw-
ned. Don't trouble yourself about
» as I please. The deceased set
-pence: the prisoner said it was
ipertiueut; and some other words
' flung a flask at the deceased, who
OKd a glass or a candlestick. They
tworda, but were prevented from en-
4 so they sat down again ; the de-
lod hia hand to be reconciled, upon
priMoer save him very ill language,
m wottlu have his lAood. As this
dve that their quarrel would
IIm nest day, 1 invited the

oompany to dme with aie,la hopcs.lo brioff oa
n recoodfiathm, and nrsvent futnre niienief.
The prisoner answersd my ofler with,- No, God
damn ye, I'll dine with none of ye. Are ye
ngry, £Kr, says I, Bare ye any thing to any
tome r Or me? says Mr. Hansins. Or ooef
saya Mr. Rieh. No^ he had nothhtf to say to
anyoffls. This was aboat two or three in the
morning. And after we were all enme oat of
the room, I heard the prisoner call the deocaied
book ; and they were no aooner got into the
room agam, but the door waa flimg to, with
grsat nolcoee, and I heard the mshing of
swordsi When I got in, which was with maoh
dlffienhy, I did not see that the deeeaaed had
any sword in lus hand, but he waa sinking forr
ward ; and I, by gomg to assist him, received
a wound in my belly, which I was afraid wii
mortal ; bat 1 cannot tril how, or by whom it
was given, though I tbonk it conld not be by th«
deonsed, beoa^ he had no sword ; and be-
sklesy vraa not in a eonditioii to do it. A sor*
geon being in the hoose, gave me his imm9-
diate asristanc^

Mr, SAow, the snrgeon'. I. fhnnd the da>
oiised bngnishmg in a chahr. His intestines
nppsnred attheweand, and by being esposed
to the dr began to mortify. When 1 had
dreised him 1 sent him home ; bat the neil
day I foand a second mntnre of the mtestines.
Hediedsoon aUter; and thai woimd was the
cnnse of his death.

Prnsmr. A wager was Idd bdwixt Mr.
Bioh and Mr. Blunt, concemmg Mr. Mills*i
actittg the part of Caesar m the day of Jalios
CsBsar, and it waa kist by Mr. Blunt. After
this a box and dice were called for, but not by
me; the drawer said he had dice, but no box ;
upon which somebody edied for a pepper-box.
1 flung a main at 12i. and passed it about.
Mr. Hawkins refusing, I said, I thought there
was as good fellowship in a little play, as in al-
together drinking : then we played for half- a-
crown or Ss. ; and when the box came round
again, the rest likewise refused to play ; at
last, the deceased offered to set three half-
pence, which 1 said was very impertinent He
called me rascal ; ** You impertinent puppy,"
says I, ^' what do you mean by that ?" U|)on
which, he threw a glass at my bead, and drew
upon me. 1 told him, be acted basely in draw*
log upon me, when it was he that gave the
affront. Afler this i put on my great coat,
and was croing out. Mr. Hawkins had slipt
away, ana the rest being gone out of the room,*
Uie deceased pushed the door to, and drew upon
me, and wounded roe in the knee, and cut my
finffers. I parried and closed with him ; he
endeavoured to stab me in the back ; at which
time Mr. Blunt came iu, and received a wound
in his belly, which must have been by the de-
ceased's sword.

John Barnat the drawer. I threw the pri-
soner's great coat over his shoulders, as he waa
going out. Mr. Hawkins came out first, and
asked if his chair was at the door ? I said, Yes.
Mr. Blunt followed, and I went down to unbar

S5]

12 GEORGE I.

Trial of Mtgar Oneig,

the door ; tbc rest of 4he company not eomingf,
I weut baokimd met Mr. Riob ; Kebkl me open
the door ; I thou«^t he meant the street-door,
and was turnings that way again ; but be airore
at me, and told me the other door : I opened
it, and went in 6r8t, and the deceaied and the
prisoner were both with their swords m tbeir
tiaudH, pointing towards each other. The de-
cessetl closed with the prisoner in a manner as
if he was rather falling' than pushing ; and the
prisoner with his led hand bad hold of the de-
creased, who, as soon as we parted them, was
BO weak that he could not stand. I did not see
him bleeding when I came into the room,
though I cried out to the prisoner, For God's
sake what are ye doing?

Pritoner. uid not yon see the deceased
ofier to stab me in the -back ?~-jBariief. No.

Mr. Burdet^ a surgeon. The next day in
the evening, the prisoner sent a coach to my
house with a letter for me, intbrming me that be
had been wounded in a rencounter, and desiring
me to come to him. I went, and found him in
bed at the house of Mrs. Gardiner, in Dean-
atreet, near Red-Lion-sqnare, where he had
concealed himself. He had one wonnd beloir
liis knee an inch and half long, another on his
buttock, two of his fingers were cut in the first
Joint, -and he shewed me three or four holes in
his breeches ; but none of his wounds were
above a quarter of an inch deep, and that in liia
leg had but just raised the skin.

Mrs. Ganiiuer, The prisoner came to my
house about two o'clock in the morning: he
was bloo<ly , and upon searching him, I foood a
wound in his buttock as deep as my (inger, and
I dressed it for him.

Court, The evidence is |)lain, that the pri-
soner cave the first provocation ; and it is not
denied, that he afterwards killed the deceased.
The question is, Whether from the time the
prisoner threw the bottle^ to the time the de-
ceased received the wound, there was any re-
conciliation P If there wai nutylthink it can
be no less than murder.

The jury found there was no reconciliation ;
but not bemg satisfied as to the murder, they
agreed npon a special verdict.

The counsel on both sides attending, they
stated the principal points of the evidence for
the consideration of the judges.

Whattlic prisoner's counsel di^ewup, was
lo this efiect :

*< We fiud that the prisoner, the deceased,
and three more wet at the tavern, where they
all appeared very irieuflly. — A box and dice
wefe called for, — they played some time toge-
ther, till Mr. Rich said, W ho will set me throe
half-crowns?— The deceased put down three
halfpence, and said, I'll set ye three pieces.—
The prisoner said^ That's impertinent— 4he
deceased answered, He that says I am imper-
tinent, is a TasGal.^rhe prisoner threw a
bottle, and the decessed threw a glass.— They
both got op, and took tbeir swords ; but one of
the company stepped in, and prevented their
tngagingw— They tat dvwo agam to drioki— >

about an boor, and thao the ^
broke ap. — The prisoner pot an his g
—-They all went out of tne room. —
soner and the deceased returned, the
abut, and the dashing of swords waj

The counsel for the king stated the
to the following purpose :

" We find, that on the Sd of Febr
jirisoner^ the deceased, and three otfa
in company at the Castle- tavern, and <
in a peaceable manner for aboot two
The prisoner then called for a box i
but none beine to be had, he callei
pepper-box, which was brought* — £
found upon the table $ — they played a
—Mr. Uioh asked, who would set fa
half-crowns P The deceased iaajocu
ner laid down three half- pence, a
Ihere's three pieces— the prisoner ca
an impertinent pappy, and threw a
him, which missed lum, but brushed
-^Tbe deceased tossed a glass or candl
the prisoner, which did not hit him
both rose up, and took their swords ;
prevented mm fighting.— They si
a^in.— The deonsed wered to be
with the prisoner ; but the prisoner a
No, Gad damn ye! I'll have your li
God ! — ^In about an hour after this, t
pany all went out of the room ; but
aoner called to the deceased, and said,
gentleman, a word with ye.— They
turned into the room,— the door was i
violence, and the claabing of swords w
—We fiud that iram the time that tl
was flang, to tbc time of the breaking
company, there was no wconciliation.

Tliese two ron^h drauj«hts being o
and some alterations bemg made, al
drawn op, which was agrwd to and a
the jury, and was to this tenor.

Spscul Verdict.

« That u|M>n the Sd day of Fcbmai
the prisoner and the deceased were
pany, together with John Rich, ThoEfl
Kins and Michael Blunt, in a roon
Castle •tavern in Dmry-lane, in the c
Middlesex, in a friendly manner. 1
they had continued thus for two hours,
dice were called for ; the drawer 6ai<
dice but no box ; and thereupon the
bid the drawer bring the pepper-box, ^
immediately did : and tnen the com
gan to phiy at hazard ; and after 1
played some time, the said Rich askei
one would set him three halt^owns P
upon the deceased in a jocular nsa;
down three halfpenny pieces, and the
the said Rich, 1 have set you three pii
the prisoner at the same time set the s
three half-crowns, which the said R
and immediately, after the prisoner in
manner, tnmcd about to the deceased,
It was an inpartinent thing to aet ha
and thai Iho daoeasad ww an

Jlr4(rJIMb<^«HU» Omt.

Araint.

t»

j^lW «>(lamir ; to which the dcFeased

M WborriT caHe^ bim su ivns a

Tta lhrrru[i>)n lh«- saii) .luhn Oni?l>y

IlkNdr, Bnd wilh grrat furc« llirpv it

Mfcf ^rilhelmDfliGowEr;' which

■■M hit the wid Gnxrr, but brushed

llfr.uit pneaei by hi* huid, anil heal

Midi: pnvitrr; whereapon tlie de-

^^diiW; sftrr iMsed ii CHwIlexticfc oi

^1 |int(hcl' JnhBnnirm Olicbj,* hut

Hi biw niib Ihe same : upan which

Bnl ud lb« [insoner both rose up to

^(■Mdt, itiiicb iben htmg tiji in (be

Mlht dcceaied itrpw hit swoni, but

nr MI prevtnlF't' frnm dnwng hit

■fMji ; and Ibe tlpcinfiHl thereupon

tf hk iword, and the compuiy iM«r<

ItjrNtdDHnRcniTiror Ihe spare of n

lilUlheFiEpirittinD oF an hour, lh«

■M to Ihe priMnier, We have had b«t

Ijw i»i* ibe aegremor ; but I think

■titorer; and bt ihesanie time of-

lad Ktlbeiaid John ODcby, lOTrhrdi

ka Oathv nittwerEd, M", damn you,

t t»Hir bitwd. They furtlirr Bod,

WtIs the rtrkoniii^; was paid by Iha

fee pnioDer, Hid), Hawkins and

ll all the company, except the pri'

iMit n( the room ti> g<i hume ; and

Teiuainiiig alotie in the room, called

■Mh>I in these words, Young tna

K I have somettiin^ to say tu yoi

kdie deceased rduraedinto ih* ruoi

Mnlely the door was Ifltmg (u at

Mvcfty the rest of the company we

rvrf then B dstliinr of swords n

■Ifce nrituner, with Tiii sword, g»-

■Md tne mortal wound meDtinncJ

tamt, of which he died the next day.

ttm tml, riwt at Ihe femkbig up of

MaaGglit wmwdi in (heenngement;
tta oeeeiacd bong atked, upon hii

IMUldi

did. llial Ann tin time of

M iba adtioe of tbs Cmrt, ai

womtt hting carried Itack to Newgate,
vaa; M7> "or about a twrirs-motiih,
riMMOD, •sdMgadb»ooiiMMdimH
■i M tha ftDascMtnr bad tahm oa
via hta^Bg m the kaariiig «f the
^Jo, ho fraw prett* coiiHMit tt
r4mmm^ti imm»amer, and ftad
tmmn *• Cnart of Kii^a-beach for
■k ta ha laada liir arnior the tpe-
«Mbi>lbeOaM; wliwhltcioff or-
etMormi frm Htgt ^

Bapoft^ Ml. 9, p.

M#lb« Mlaaw bilMsl *• lai, il WW «■*
kCmm&ui, die Court befaifarMijiint Hut fl
oonM BOt ha aada ■ Cutikim in hia aliaoaea |
■i#J»nkM TavBhWOae, Y, it <MU arnad
WnrtMi &vi^telk»U>ff, an* aajaHl

aanifiwwJi 1« awtor ta MaMM^mhtlklt
m* la Mirfvor MMlauhtais f ataUl ww-
nk» «M wUah ta km- l» ha dMMltd, tIM
afwr wilMaw UUm W wJt, aa2 that
■alfivBH toakhar annaw imlM. fUk
■•^ «iHn toplio« !■ lU a« itadf, Ifnawn
^ - iMapaatMaHaat tlni«WI«

Balhtarh*«arii
AapSawlhMw
■dfthMl—ioft

oAnnMl«adi*at|i»]

«aM' ••■MMfpivMei

■t|i»iaiBl«
BatWwaril

miBMriM»t»*a.wriaff ar datav aC«
IMw b* Mr. ««*«v tW «Mi* ff)w«fcMa
tvttaiitteM: »*»aaib^ •Tbair.pmk
iWi »lblfl» b« wMlid, IbaaAaatiwai la
lb. IMS aa<«at «> Mi. Oncbt, wbaaa bMt
t* MM WHDMMaU aibeud W wbai was
*tolir Mr. ObtTCAr. Aid Aat ilia RMfdvii
tbtodiftiiit, Itkiak caHM hadiapma^
rtw ba MbMBt of tb« (Tawt in Maw-
wMm^ mmt Iban Iba battto thmn br
KpTbk MMi<ib%a, ni Iraba Ua ba^
bwat tba flwdhaUcfc^ ar battle lowad hj> Odwv.
did sat bfttbaipriaaBar el tba bar: that ww

■eonent killing bj
in Bf nwfrid^g «

Id peaev maaihaled byllriOewnv

coMinaance of malioe )»tbe nriaonar flw

afeave an boor alter the fiial confliot. What
waa doM bore hj Ur. Gtower would ban beca
nutiAaUe in him, eten if the caodlealiek had
hit ibe priwoer: aod io it wu restored ■■
HawrMlKe'ieaBC; fbrthere the boUlo returned
by Mr. Cope did hit the defendant, mod broke
bis bead. Aail ai % act done hj Hr. Gower
wia jitrtifiabia in bmi, it follows, that it caa
ba no fcundatton ta exoiwe or mitiffate the «ah>
by Mr. Oneby.' The eeaepi*
" of ansaMnltby A upon B.
ind pimaes A to the wall,
where A in b» own defence kilh B ; this ia
held ntarder in A, thotigh it bu many siTonf
riwuwattuces in flffonr of A, which arenotia
tbia caae. Bat I appreheDd, it i« not necessary
to rIj bately oo this pmnt, that there ia inaiice
iasplied in (be ad i since it plaialy appeara,
upon tboata(cof thocaae, (hat heraisezpreaa
iMliee. When Ibe deceawd waadeairoua te
end (be Battler amieaUy, (he prisoner repfiea,
"Ne, daoHi yoa, I will have your blood :"
this ezphiioB and goea Areufih (he whde fbet,
and pnnea the auhaeqnent failliog to be malt-

I do therefore insist, that takinf; it ather

way, citber as a killitiir out of malice implied,

malice express, i' ' "' < ■• — ■^•-

npoo the Hat ii a killing of malic
aadapoa tbe priswar^ awa worda coupled

SJJJ

12 GEORGE I.

Trial tf Major Oneb^f

i»itb the fact, it is m&lice express, and conse-
queiitly murder.

Serjeant Eyre^ for the defendant. The ques-
tion is, what degrree of homicide this is; and I
apprehend it to be but manslaugrhter : the dis-
tinction is, that if the killings be of malice fore-
thought, it is murder; if on a sudden' occa-
sion, it is but manslaughter ; and that I take
to be this case: in 3 Instit. 61 malice pre-
pensed is defined to be, when one compasseth
to kill another, and doth it udato animo : on
the other hand, manslaugliter is the doin^ it
without premeditation, upon a sudden brawl,
shuffliofif, or contention. 3 Instit. 57.

The law has ever been indnlmrent to the
passions of men ; < ira furor bre? is est,' and
therefore as a roadman, the party is excused
for what he does in a sudden transport of
pasRion. I do admit, that bare words are no
provocation ; but yet they will serve to explain
the nature of the combat, and shew whether
it was sudden or not. The calling the prisoner
a rascal, was what no man of honour could
put up ; and as this was the beginning of the
quarrel, the fijc^htinrr was as sudden as the re-

S roach ful words. If the prisoner had stabbed
^Ir. Gower, upon speakmg the words, and
Gower had done nothing, I believe it would
have been murder ; but here was a regular
tight, an interchange of blows, and so it comes
up to the case put in Kelyng o5, of a combat
1»etween two of a sudden heat ; where if one
kills the oilier, it is but manslaughter.

The law has fixed no certain time, when it
shall be presumed the passions of men arc
cooled. The case in 12 Co. 87, must take up
a longer time than this ; fur there the boy ran
three quarters of a mile to his father, and told
his story, and after that the father provided
himiiplf with a cudgel, and had as far to fro
in pursuit of the other boy ; and there is this
ditference between that case and the case
at bar ; that there the adversary was out of
sight, but here he continuc<l in presence,
which must rather inflame than abate the
passion.

I'he words made use of by Mr. Gower carry
an imputation on Air. Oneby, which migKt
provoke him afresh ; the tellmg him, he was
ihe aggressor, was not likely to make an end of
the quarrel : and that is plain, from the manner
in which Mr. Onehy understood them, who
would never have said so harsh a thing to his
friend Mr. Gower, if he had l>eeo at that time
in an^' degree musicr of himsell*.

It is not ibund by the verdict who began,
after Air. Gower returned into the room : it is
not likely the prisoner began, because he hail
his great coat thrown over \m shoulders ; and
as to the shutting the door, it is stated to be
done immediately on Mr. Gower's returning,
and is likelier to be done by him that came into
the room. When the first conflict happened, it
appears Mr. Gower was the readiest to draw
his sword; it was actually drawn, and Uie
priaooer'i was not ; and lince it ia not italadi

who drew first the second time, I think itoog
to be explained by the first.

To make it murder in the first instance,
must be done with a weapon that wouki m
danger life. The bottle in Mawgridge'a a
was full of wine, and it hit him (Cope) sa m
lently, that he never spoke more. But fbrs
thing appearing upon the verdict, this am
be onl^ a small oil- bottle, usually set v^]
tables m pnblic-boujies; and might perhapa
empty before it was flung. The case of
Turner, which is taken notice of in Comb.4i
was held manslaughter upon this
cause the clog was not such an i
from a blow with which it was Ukelj
should ensue. But supposing the bottle
be as big and as full as Mawgridge's '

jfet no harm was done by it here, as tbcra
m Mawgridge's case. Here was no dra^
the sword eo instante^ as Mawgridge «
which occasioned the judges to lay th^
turning the bottle by Mr. Cope out ot the ^
and construe the immediate drawing
sword, as an intent to supply the miacft
which the bottle might fall short of; ande"^
in that case, one great man difi*ered from
rest of his brethren. — So that Mawgriilc
case is materially difl*erent from this. Tti
the intention from the first throwing the bo(
was to commit munler, here it was othenri
There the first boUle hit, here it missed. Th
the murderer's intent was immediately earn
into execution, here was a long intermplil
The deceased needed not have returned, if I
baii not been equally disposed to combat; ■
he himself said it was a fair combat, wUi
there was no pretence to lay in Mawgridp
case.

Serjeant Darnall replied. The words on bi
sides must certainly be laid out of the case;
not, puppy was worse than rascal, because
is the name of a beast. If Mr. Gower ti
Oneby to be the aggressor, the condescend
was greater in him ; it is no more than say fa
I, who have been injured, am ready to pasi
by. I do not find it was at all reiie<l upon
Mawgridge's case, that the bottle was fu
and as to the case in Coinberbatch, Tumc
servant there had committed a fault, for wh
he was liable to be c(>rrecte<l : the decease
declaration was only that he received i
wound by a fair push.

The Court sniil nothing upon this arguroc
but appointeil another to oe before all
judges of Eugland. And in Easter term 1
k)wing (May 6), it was accordingly argued
Mr. liCe fur the king, and Air. Kettleby (i
, jeant liaynes, who was rvtaiiu-d, being ill)
the prisoner, to the same efl*ect as the fore
argument. Str. vol. 2, 770. Tlii> prisoner
being present in Serjeants-inn (ChaiictTy-lai
a& he was in court u|)on the first argumei
this last lieing only tu have the advico of
other judgtti

/sr Iht Murder nf WiHiam Comer. A. D. 1726. [42

i-allfil htlf-erotms; ifaai thereupon Ihe said
William GoivFr, in n jocular raatiQer, lel tbree
piccRS "f money, cnlkil li(lt-|ieiice. Boil then
ni J to th« saiti J'jhn Rich, ihat h<' hud set him
ibrer piecM ; that ilie solil John Ooeby, ul ihs
same time, kcI tbe saiJ John Ricli tlirce hnlt-
crowDs, nhich the Eaid Jobn Rich won; and
imn»>(1ialely the <uiil John Oneby, in an angry
manlier, lamed to the said William Goiter,
and BBid to him, that it was an impertinent
tliini* to H-t balf-ppnee ; snil I'urther anid lo the
said William Gower, that he, ihe laid William
Gower, was an impertioeni \>up\>y in sodoiog;
lo which the said Witlinm Gower then and
there answered, that whosoever culled him to
rascal; and thereupon the laid Juhn
Oneb; tnoL up a ^lans biiitle, and wiih i;reBt
force threw it at the said Wilham Gower ; but
the glasa boHie did oot strike Ihe said William
Gower, hut passing by near his heail brushed
* 'a nemlce, which he llien had upon hii head,
id btat out some of llie powder out iif hii pe-
ike ; that thereupon the said WiUiHin Gower,
immediately aiier, loase d a g\n%s nr <'andleslick
at the said John Ooeby, but the iflant or cau-
dlestick did not hit the said John Onehv, iiuun
which, both tlie said John Oueby and Wilham
Gower jiresenllv rose fruin their aeals, to fetch
their swords, which then bung uii in the room ;
and Ihe said William Gower thro di-ew hi*
Bword out of the soahbard, hut the niiid John
Onehy •cat hindered by olheri of tbe cumpany
from drawing hisNimrd nut ol' Ihe scabbani ;
whereupon the inid William Gower threw
away hia sword, and iiy the interpoiitioo of tbe
■aid Jobn Rich, ThomaH IUivLiuh, and Mi-
chael Btiinl, tbe smd Wdlinin Gower and John
Oneby «Bt dnwn 8);^iii, uU'l beutg so set iliiwo,
contiuueii lor th>' Etiiucc uf an hour, in company
with the said Juhn Rich, Tliomaa Hawkioa,
and Michael Blunt ; ihat after the cxpiraiion
of thai hour, the said William Gower said to
the said John Oiieby, We have had hot worda,
but ynu waa the aggressor, but I think, we
may iiasi it over ; and at Uie same time tha
■aid VVilliam Gower offered his band lo the said
John Oneby ; to which the said John Oneby
then aoswcreil the said William Goner, No,
damn you, 1 will have your blood ; Ihat atter-
wardc Ihe reckoning was paid by the said John
Oneby, VVilliam Gower, John Rich. Thomas
Hawkins, and Michael Blunt; and tluit th«
Eaid William Gnwer, John Rich, Tbomaa
Hawkins, andMichael Blunt, went out of the
said ninju, with an intent id go home, leafing
the said jobn Oneby in Ihe room ; thai Ihe
said John Oneby, so a<i aforesaid, remaining in
Iherooiu; called to tbe aaid William Gnifer,
Young man, come back, I have something ID
say loyou; that tliereu|HJn Ibe Siiid Wdbam
Gower returned into the aaid room, and tba
door nf tbe room was unroedialely flung lo, and
shut ; by reason ol which shulting of the door,
all of the said company, besides the said Wil-
liam Gower and Jobn Onehy, were shut out of
Iberuoin, and thai llien alter ahuiline of tba
door, a clashing of sworda was heard i tbeu

tm, tS Gm. 1, and 1 Geo. S, 1TS7.

XfoaJiy, Jitnt 11.
t/bf being brought to tlie bar froin
\t»i the resolution of the Court,
Raymond* delivered ihe npi-
jadges, in the folloniug manner,

KlSR Mrl. Jons OlSEBY.

tanal sessioiis of the peace, held
lall, for the county of Midillesex,
Fdwusry, in the 13th year of bis
ip], John On^y. of St. Martin's
I, ttot, was indicted, for that he,
■1 February, 19 Geo, al the said
■iouily, foloDtarily, and of bis
Rlbanghi, made an aasaull upon
Goner, e*q. and that he the said
iritb a sword, which he then and
'diawD in his right hand, the said
in and upon the lel^ part of
.be navel, lekiniously. volun-
tf his mabce fore'lhoushl, did
thrust, giving the said William
~ and there, with Ibe aaid drawn
upou bis said left part ot* his
e (tare), a noortal wound ; of
wound, the said William Gower
iwliing condition, from Ibe aatd
'cbruary, to the Srd day of tbe

■ nid mortal wound, did die ; and sn
>4kd, Ihat the said Oneby, the said

fcfe)ollioully, Toluniarily, and of
thought, did kill and murder.
Icment being delivered to the jus-

r delivery for Newgale, Ibe said
was arraigned thereupon, aod
Guilty. And u)Miu the Trial.
id belore Mr. baron Hale, and
tTbompson, reconler of London, the
■Im special verdict lullowing, viz.
llw said Joho Oneby, and the snid
>«w«r, together wiih John Ricli,
lawkiiM, and Michael Blunt, were in
iQgrlher in a room in (he Gastle la-
e parish ofSt. Martin's in tbe fields.

J manner ; that after the saiil John
iatn Gower, Jobn Rich, I'hoiiias
and Michael BInnI, had continued
I ibe saiil room, lor ihe space of two
>K and dice were called for; where-
drawer aaid, that he bad dice but no
llul thcreu|Hin Ihe said Juhn Oneby
«! ihe drawer In bring a pepper-hox,
hogly a pepper-box HHil dice were
Ihal milled lately after, tbe said John
HUam Uuwrr, Julm Rich, Thomas
•nd Michael Bluul, began to gday
nod after Ihey hod played hall :
Mid Jobn Rtcb B«ke<l, il any of (he
Mold *H him three pieces of money,

■ 3,

43] IS GEORGE L

the jury find, that the said John Onebj gare
the said William Gower, with his swonJ, tho
mortal wound in the iDdicttnent mentioned, of
which he died ; but they further find, that at
the hreafcing up of the company, tlie said Joho
Oneby had his great coat thrown over his
shoulders, and that the said John Oneby re-
ceifed three small wounds in the fighting with
the said William Gower, and that tliesatd Wil-
ham Gower being asked upon his death-bed,
whether he the said William Gower had re-
ceiTcd his wound in a roanoer among swords-
men called fair ? answered, I think, I did : and
they fuither find, tliat from the time the said
John Oneby threw the glass bottle at the said
William dower, there was no reconciliation
between the said John Oneby and William
Gower : and whether this is murder or man-
slaughter, the jury pray the advice of the
Court: and if,oec.''

So that the question upon the special verdict
is, whether John Oneby, the prisoner at the
bar, is guiltv of murder or manslaughter?

A great deal of time was spent m drawing
up this snecial rerdlct ; for although the trial
at the Ola Bailey was in the beginning of hist
Blarch was 19 months, yet the record was not
removed into this court, 'till Hilary term last,
towards the end of which term, it was argued
by counsel on both sides ; and another argu-
ment beincjr desired by the counsel for Uie pri-
soner, we thought it proper to desire the opt-
uion of all the rest of the judges ; and for that
purjiose, it was argued berore all tho judges, at
;sterjeant'8-inn hall in Chancery-lane, upon the
6ch day of May last, which was as soon as all
the judges could meet, by reason of the inter-
vention of the circuits. And at\er mature con-
sideration had upon a meeting of them, they
uriaiim gave their opinions, and came to this
resolution unanimously, not one of them dis-
senting, and which 1 nave authority from them
to declare, viz.

That John Oneby, the prisoner at the Iwr,
npon the facts found upon this special verdict,
is guilty of murder.

Without entering into a nice ezaminatbn of
the several definitions or descriptions of mur-
der, as they are found in the old law-books, as
Bracton, Britton, and Fleta, where the wicked-
ness of the act is aggravated by the circum-
stances of secrecy or treachery, murder has
been long since settled to be the voluntary kill-
ing a person of malice prepense; and that, whe>
ther it was done secretly or publidy. 8tanndf.
PI. Cor. 18, b. S Inst. 54*

But then it must be considered, what the
word malk;e in such case imports. In com-
mon acceptation, malice is took to be a set-
tled anger (which requires some length of
time) in one person against another, and a
desire of revenge. But in the lenl accepta-
tion, it imports wickedness, whicn includes a
circumstance attending an act that cuts off all
cicase. By 35 H. 8, o. 3, ibr taking away
dergy, it is enacted, That every penon who
•hnll ne indictMl of the erina ttenin men-

Trial of Major Oneby^

tioned, and thereupon arrugned, and si
mute, of malice or of frowaraiiess of xm
shall lose the benetit of his dergy. Nov^
that place, malice can never be understooc
the vulgar sense; for the party cannot
thought to stand mote, out ot a settied asfl
or desire of revenge, but only to save himSH
and therefore such staiHling mute, and reAw
to submit to the course of justice, is said tfl
done wickedly, i. e. witliout any manner of*
cuse, or out of frowardness of mind.

Tliis malice, an essential ingredient to ma
the kilUnff a peraon murder (to use Ike eipp
sions of lord chief justice Coke, and lord 4l
justice Hale, whose authority hath estabU
them,) must be either implied or express ; i
says Hale, in his Pleaa of the Crown 44, t
implied nuilioe is coUeoted either from the m
ner of doing, or firom the person slain, or i
persoiTkilliog. As to the two last, there in
occasion, at present, to take them into oon
deration.

1. As to the first, viz. firom the maMiei
doing, as Hmle expresses it, or as Holt, ehi
justice (vide Mawgridge*s case poiUa) m
firom the nature of the action : 1. Wilfiii
poisoning any man implies malioe. S. U
man doth an act, that apfwrently must d# bar
with an intent to do harm, and death easm
it will be murder. As if A runs with n hsn
used to strike, amongst a multitude of peop
and the horse kills a man, it will be mesdi
for the law implies maKoe firom tlie nataie
the act. 3. Killing^ a man without a provoi
tion is murder ; as if A meets B in the sirs
and immediately runs him through wtlli
sword, or knocks out his brains with a hai
mcr or bottle. And if angry words had pe«
in thai case between A and B, yet it wm
have been murder in A, becauKe woi-da are i
such a provocation, as will prevent such e I
mioide from being murder; lord Morie;
case, Kelynge 5Q*. 4. The law will imj
malice from the nature of the original aetii
or first assault, though blows pass between t
parties, before the stroke is given, which ooi
sions the death. As if npon angry worda
abusive language between A and B, of a sudd

A, without any provooalion (for aogry woi
or abusive language in snch a case is look
on as none), draws his sword immediately, n
makes a pass at B, or strikes at him with ai
dangerous weapon, as a pistol, hammer, lar
stone, &c. which in all orobability might I

B, or do him some great oodily hurt, and tb
B draws his sword, and mutual |>aKses i
made, and A kills B, this will be murder, i
the act was voinntary ; and it appears fn
the nature of it, that it was done with an i
tent to do mischief; and therefore since in ;
probability it might have occasiooed B's deal
or dona liim some great bodily harm, the li
implies malice prepense ; and the resistance
passes that vrere made bv B, were but in ti
defence of his person, which was violently ai

« Seevd. 6,p.7a»eftUiCoUectinB.

lii^tvv bMB carried before. 9. That
■tteraned with the onaDimoiis opi-
MIlfcelheB jadget, for one rerj great
fifcelheBtwelfe, viz. lord Trevor, dif>
m the other judges, and held it was
■Auirhter. fiitt opoQ our meetincT to
ef Aia prcaent case, all the judges
mdj agreed, that Mawgridge's case
med lair f , and that that judgment
te and jast judgonent, so groundless
iHiaiiatioDy which had ^en made
ao miouatioD there was) in West^
mH, that same of the present judges
ipaioo, that the judgment in Maw-
aaa was not a legal judgment,
lia is aa naoch as is necessary, rather
I is necessary, tocbe said as to im-
i0i^ ainoe there will be no occasion in
la kok out for malice implied,
ioa ncpreas is a design formed of tak-
aaollMr man's life, or of doing some
la BBoiher, in the execution ofwhic^
And this holds, where

p ia Bot foTVied against an^ particu«
if as if A^ having na particular ma-

person, comes with
naalatioo against all opposers ; if the
ImfM, mad death ensoe, it is murder.
tacoauMt a riot, to enter iato a park,
B% case, H. P. C. 47. Moore 86, Sar.
FA fMa with a reaolotion to kill the
he aaals, and meeting B, kills him,
lar wiA exjpnas maKoe : yet A had
wi mmf mahce minst D, nor a^nst
iiaon, Hach more it will ba
F,~ when4ie mischievons design is
at anj particular person, which
•vidmit,aB well hj mmmstances
I gpiaas dedaratiana of the per-

Eve him no provocation wliatsever ; for when
r. Gower set the three halt- pence, he set
them against Mr. Rich, and that in a jocular
manner ; tlierefore that was no affront to Mr.
Oneby. 2. Upon that Mr. Oneby turned to
Mr. Gower in an angrv manner, and g^ve him
abusive language, and called him impertinent
puppy; the answer of Gower was not im-
proper, nor more than what might be expected,
that whosoever called him so was a rascal.
3. That as Oneby had before begun with
Gower, by giving hire abusive language, so he
then took up the glass-bottle, * et magnll cum
?i,' threw at Gower, and beat the powder out
of his peruke ; if it had killed Gower it had
certainly been murder; upon which Gower
tossed a gloss or candlesticK at Oneby •* And
the difference of Anding in the special verdict
is observable: Oneby threw the bottle at
Gower, * magnft cum vi;' Gower only tossed
the glaoa or candlestick at .Oneby. 4. Whan
they fetched their awords, Gower did it only to
.defend himself; for tba verdict finds, that
though Gower drew his sword first, jix the
prisoner at the bar being hindered by the com-
pany from drawing his sword, Gower there-
upon threw his sword away. 5. By the in-
lerpoaition of the company, the prisoner at tba
imr and Mr. Gower sat down again, and con-
tinued in company for an hour ; after which
Mr. Gower said. We have had hot words, but
yon was the' aggressor, but I think we may
pass it over, and offered his band to the pri-
soner ; that the priaoner at the bar was the
jggressor, is true, and that in a violent manner :
Tlua was sufficient to have appeaaed Mr.
Ond>y: hot what is his answer r No, damn
yoo, I will have yoar blood. There ia an ex-
I pnsa declDration of malice, an express de-

O A.t

47] 12 GEORGE I.

room ; that the prisoner remaioioi^ in the
rtyna, called to the said William Giiwer.aaviogf,
<* Yuunt; maa, comeback, I have aometliiDK' to
say to }-0H." Tltene word* also shew a plain de-
Jiberaliofl ; and l>ciiig' attended with tbedrcum-
ataoces tuiiud tiefure, and what foltowa imnie-
dialely, import c»n tempt; ** Youn|r man" are
insolent and impmous, and ** Come back,'' im-
port a re»<;ntmc'nt he had conceived aniust Mr.
Gower, abriut which he had somethin{|^ to say
to him. For what purpose did the prisoner
stay, after all the company had left the ro(rm
to go home? It was to say something to Mr.
Gowcr. What is that? Wliy, as soon as BIr.
Gower is returned into the room, the door iras
immediately flung to and shut, and the rest of
the company shut out; and then after shutting
die door, a cla-shing of swords was heard, and
the prisoner gave .Mr. Gower the mortal wound,
of which he died.

These immediate subsequent facts shew,
what it was the prisoner had to say to Mr.
Gower ; it was to carry the malicious design,
be bad bHbre declared he had against Mr.
Gower, into eiecution, viz. to have his blood ;
and be had it, for be gave him the wound of
which he died.

To go further: If the prisoner had malice
against Mr. Gower, though tfiey tbuglit alter
the door was shut, the interchange of blows
will niake no diflerence ; for if A has malice
against B, and meets H, and strikes him, B
draws, A flies to the wall, A kills B, it is
murder. H. F. C. 42. Kelynge 58.

Nay, if the case had been, that there had
been mutual malice between the prisoner and
Air. Gower (which does not appear to have been
on tlie part of the deceased)* and they had met
and fought upon that malice, the killing Mr.
Gower by the prisoner had been murder.
11. P. C.47. 1 Bulstr. 86, 87. Hob. 121.
Crompt. 21.

The jud^ were all of opinion, upon the
ftcts found m this verdict, there appeared to be
express malice in Oneby against Mr. Gower ;
and then Oneby killing Gower, having such
express malice against him, they were all una-
Dimous, and clear of opinion, that this was
plainly murder.

Having thus mentioned the reasons, upon
which we ground this present resolution, 1 shall
next consider, if any of the objections made
by the counsel for the prisoner are in answer
to these reasons, or take off the force of them.
The counsel i'or the pri«Mier, Mr. Oneby, in-
sisted, that upon the whole verdict, the* case
was no more than that from a slight occasion
passionate words arose, mutual reproaches
passed; the quarrel was sudden, mutual as-
saults were made; and on a sudden figliliug, in
heat of passion, the prisoner killed the de-
ceased, which can be uo more than man-
alaiiflhler.
That such fact could amount to no more

* The verdict implies the contrary: Fur he
•ffarad him his handy te. Fifrmcr "EdUuM.

Trial of Major Onebyt

than manslaozhter ; they cited the known c
that if A and B fall out lipon asiidtten, and L
presently aji^ree to tight, and each fetches
weapon, and go in to the tit-Id and fight, and
of them kills the other ; this is but maoaiaugfc:
H. P. C 48. 3 Instit. 67, because the pas^
was never cooled.

In this case (said they) it is plain the tp^
arose on a sudden ; Mr. Onebv's passion
raised, and that it is not founcf by ttie jur^
have ever been cooled; and therefore
words 3lr. Oneby spoke. No, damn yoiB
will have your blood, Nc<r. were only wordm
heat, spoke under the continuance of the ■
passion. And they further insisted, that
law hail fixe«l-'no time, in which the pasm
must l>e took to be cool ; but that depemn a .
circumstances, of which the jury are the pre
judges. In this rase, the whole time ■
passed, between the f|uarrel, and giving
mortal wound, was but little more tban
hour; and it has been adjudged, that the p
sion shall not be took to be cooled in very c
that time. 12 Co. 87. Cro. Jac. 996. H.
C. 48, Rowley 's case, where the child oT
beat the chiUl of B. B's clnld, all bk>ody,
home to his father ; B, the father, ran tla
quarters of a mile, and beat the child of A ;
means whereof he died : This was adjudged
be only manslaughter ; yet there must ha
been a considerable time after B was provok
by the usage of his child before he killed A
child, because he ran three quarters of a mill
yet it lieing one continual passion raised ia 1
upon tbe boating of his child, it was held ll
was only mansUiughter. And in this preM
case, to shew the passion of Mr. Oneby, wUi
was suddenly raised, was not cooled, thu cou
for Mr. Oneby observed, tliat the jury had c

Kressly found that there was no reconcilialii
etween Oneby, the prisoner, and Mr. Gowi
the deceased, from the time Mr. Oneby ii
threw the bottle.

This 1 take to be the chief objection, up
which the counsel for the prisoner principal
relied.

In answer to this objection, I must first ta
notice, that where a man is killed, the law «
not presume that it was upon a sudden quarr
unless it is proved so to be ; and therefore
Lcgg's case, Kelynge 37, it was agreed, up
evidence, that if A kills B, and no sudden qui
rel appears, it is munler ; for it lie^ upon t
party indicted to prove the sudden quarrel.

In the next place, from what I have aaid I
fore, it ai)i»ear8, that though a quarrel was sc
den, and mutual fighting before the mor
wound given, it is by no means to be to
as a general rule, that the killing a man «
be only manslaughter. It is true, if i
proaeht'ul language passes between A and ,
and A bids B draw, and they both dn
(it is not material which of tliem dra*
first,) and they both fight, and mutual |iaai
are made, death ensuing from thence will
oolv manslaughter, because it was of a sudd«
and each ran the haiard of hit lift. But tin

fir ike Murder of miUam. Gc^^r.

A. D. me.

fe difi^Knce between thai caie, and
ifHi words A drawa his sword, and
. pMS at B, or with some dangerous
aitacb him, and then B draws, and
ki, and A kilb B ; there, though there
isrel npOD abusive language, and there
crvirdt a mutual figlitiug, yet since
fai B with a weapon or instrument,
■gll haf e taken au ay B's lite, though
■^afterwards, that*will be murder.
iiiwu agreed by all the judges in tbe

fcrtbe argument's sake, and it is only
HKDt'siake, and to give the objection
}j Ike counsel for the prisoner its full
if ii shuuld be looked on here, that
kmd io the former part of the verdict
■ a turideo quarrel, and only the effect
Bi; yet, if it appears upon the special
ibt Ibere was a sufficient time jior this

• eool, and for reason to get the better
mport of passion, and the subsequent
r deliberate, before the mortal wound
ikillJiigof the deceased will lie murder.
dufjiMges were of opinion, that, upon
ioB of the facts found, it appeared,
hesn sufficient time for Mr. Oueby's
rf pasition to cool,* and that he bad
I; and that the killing of Mr. Gower
boiie act, and the result of malice
J bad conceived against the de-

wf 1 nsentlon their reasons, I must
this proposition, to which they all
!. that the Court are judges of tbe
i not tbe j iry ; and that the Court
dges upon the facts found by the
ler if the quarrel was sodden, there
Tibe pasMuii to cool, or whether the
iberate or not.

le trial of the indictment, the judtre
jury thus.f If you believe such
witnesses, who have sworn such
acts, the killing the deceased was

* prepense express, or it was with
ied, and^ then ^ou on^^ht to find the
ilty of murder; but if }ou do not
ie witnesses, then you ought to find
of roan^^lallghter only ; uiid so ac-
he nature of the case, if you }>elievc
uch facts, the act \)ns dohhcrute,
erate ; and then you ou'^ht to find

And the jury may, if they thiuk
'e a general verdict, either that
r is (rnilty of murder, or of inan-
But if they decline giving a general
i wjU tiod the farts specially, the
form their judginf^ut from the tacts
•ther tliere was malice or not, or
e fact was done on a sudden trans-
ioBy or was an act of dehbcralion, or

ach'a Hawkins's Pleas of the Crown,

Lbl.s. S2.
I, see the judgment of Lawrence,
le of Dftriufbire v. Parker, 0 l^ajit ^.
VIL

Attliougb there are many special vierdicts in
indictments for murder, there never was one^
where the jury find in express terms thai
the act was done with malice, or was nol
done with malice prepense; or that it was
done uiion a sudden quarrel, and in trans*
port of passion ; or that the passion %vae
cooletl or not cooled ; or that the act was de-
liberate, or not deliberate : but the collection of
those things from the facts found, is lefl to tbe
judgment of the Court. Hollo way's case«
Palm. 545. Cro. Car. 131. W. Jones 198w
So in the case cited by the counsel for the pri-
soner, Cro. J ac. 1296, tlowley's case, the jury
find tiie fact, but don't find in express termS|
tliat the father, whose child was beat, killed the
other child in a sudden heat of passion ; but that
was left to the judgment of the Court, upon tht
particular facts found.

But then it is objected, that the law liai
fixed no time, in which the passion must ba
supposed to be cooled, it is very true, it hav
not, nor could it, because passions in some per*
sons are stronger, and their judgrroents weaker^
than in others ; and by consequence it will re-
quire a longer time in some, for reason to get
tne better of their passions, than in others : but
that must depend upon the facts, which shew
whether the person has deliberated or not ; for
acts of deliberation will make it appear whe-
ther that violent transport of passion was cooled
or no.

But thus far the resolution of the judget
have already gone ; and it has been adjudged^
that if two tali out upon a sudden, and thoy ap-
point to fight next day, that the passion by
that time must he looked on to be cooled ; and
in suoh casey if they meet next dn}', and fight,
and the one kills the other at that meeting, it
has been often held to he murder. Hale P. C.
48.

To go a little farther. If two men fall out
in the morning, and meet and fight in the af-
ternoon, and one of them is slain, this is niur>
der ; for there was time to nlluy the iioat, and
their noeeting is of malice. So is Loggia case,
Kelynge 27.

At the meeting of all the judges, before lord
Morley'b* Trial by the i>ecr8, for the murder of
one Hastings, they all agreed, that if upon
words two men grow to anger, and atlerwards
they suppress that anger, and thru fall into
other discourse, or have other diversions, for
such a reasonable space of time a J in reasonable
intendment their heat might be cooled ; and
some time after they draw upon one another,
and tight, and one of them is killed ; this is
niurdtr, because being attended with such cir-
cumstances, it is reasonably aupposed to be a
deliberate act, and a premeditated revenge ufion
tbe first quarrel. But the circumstances of
such an act being matter of fact, the jury are
judges of them, Kelynge 56. The ineanins- of
which last words is,*<hat the jury are judges of
the facts, from which those circumstances are

•w«a«*a<w

* SceVyi.o, p. vry.

51]

If GEORGC I.

eollecfeil. But, ai I nid before, wlfcn Hioie
Acts are foomi, the Court n to jodge from
them, whether they do not sbeir the act was
deliberate or not.

liOrd Mnrley upon his trial by the peers
was acquitted ; and aAer that, \n Easter terra,
18 Car. 2, Broomwich, who was indicted as a
priucipal, in being present, aiding, and abetting^
lord Moriey, in the murder of Hasting, was
tried at the Ring's-bench bar. The quarrel
was at a taTem ; but it was proved, when the
quarrel was at the tavern, that lord Morley
said, if we fight at this time, I shall have a
disadvatitage, by reason of the height of my
shoes ; and presently afler they went into the
fielrfs, and fooffbt ; lord Noriey killed Hast-
infB : hot while they were fighting, Broom-
wich made a thnist at Hasting^ and lord Mor-
ley closed in with Hastings, and killed him ;
and (siEiys the book) this was held as clear evi-
dence of their intention to fight, when they
went out of tlie taveni ; and the quarrel being
only about words, and fighting in a little time
after, it was held nurder by all the Court. And
there need not be a night's time between the
quarrel and the fighting, to make it murder,
but such time only, as it may appear not to be
done on the first passion; for loro Morley con-
iidered the disadvantage of his shoes ; and the
Court directed the jury that it was murder in
Broomwich, beinff present, and aiding; but
the jury acquitted him. 1 Sid. 277, reports
the same case, and say^, that the Court, in the
direction to the jury, laid it down, that after the
provocation in the house, they say, this is no
convenient place (and so have reason to judge
of conveniency), and appoint another place,
tliougli the finrlit is to be presently : this b
murder, for uie circumstances shew their
temper.

In ri. P. C. 48, if A and R fall out, A says
lie will not strike, but will give B a pot of ale
to t<mcli him, B strikes, A kills him ; murder.

Two quarrel ; the one savs, if you'll go into
the field, I will break your head, aud there one
lulls the other ; murder. Crompt. 95, p. 49.
Two fall out on a sudden in the town, and they
%y agreement go into the field presently, and
one kills the other ; murder. Crompt. 23, fol.
SI.

From these cases it appears, that though the
law of England is so far peculiarly favourable
(I use the word peculiarly, because I know bo
other law that makes sudi a distinction between
murder and manslaughter), as to permit the
excess of anger and passion (which a man
ought to keep under, and govern) in some in-
stances to extenuate the greatest of private in-
juries, as the taking away a man's life is ; yet
iu tliuse cases, it must be such a passion, as fbr
the time deprives him of his reasoning facul-
ties; fur if it appears reason has resumed its
office ; if it ap|iears, he reflects, deliberates, and
considers, liefore be gives the fatal stroke,
which cannot be, as long as the fury of passion
continues; thekiw will nojonger, under that
pretext of pasiiou, exempt him from the pu-

IVJU tfMaj&F Oiufyt

mhnient, which fhmi tlie greatne« o
injury and heinoasnesa of the crime be .
deserves, so as to lessen it from murder to
slaughter. Let us see, therefore, whether
this special verdict it appears that the fis
and killing Mr. Gower was only done \i
of {lassion, or was a deliberate act. By
I obeerved before, it plainly appears it was
liberate act. But to recapitnhite in short ;
the words had passed, and the bottle wastt
by the prisoner ; and swords drawn ; b
interposition of friends they sat down, an<!
tinned in company for an hour (a ream
time under those circumstances for the pi
to cool) ; and afler that hour expired, tl
ceased says. We have bad hot words, bu
was the aggressor ; but, I think we ma]
it over ; aud at the same time offered hii
to the prisoner, which was enough to hai
peased the prisoner : To this Mr. Oneb;
swered, No, thimn you, I'll have your i
words expressing malice, not passion : '
when the company went out of the root
prisoner stayed, and called the deceased I
Young man, come back, 1 have somethi
say to yon : The door immediately was
clashing of swords was heard, and the dec
received the morul woand from the priso
the bar. The prisoner's words shew, wbi
his intention, vis. to take away Mr. Oc
life ; and the kilNiig htm may properiy b
to have been done upon deliberation anil
sideration.

The counsel for the prisoner in their
ments insisted, that there were severs
cumstances found in the special verdict i
vour of the prisorier, which were a foun<
fbr the Court, to construe the other expre
to be ofdy words of heat ; and that what I
was in the heat of his first passion, whic
never cooled, and not out of malice.
It is found, that at the breaking up of the
pany, Mr. Ooeby had his great coat tl
over his shoulders ; from whence it woi
a strain, to think he then intended to figh
Mr. Gower. 2. It might be Mr. Gowe
shut the door, who came back after he wi
of the room, the jury not having fbun4
shut the door. S. That it was found,
was no reconciliation between them, froi
throwing the bottle at Mr. Gower. Bui
the first of these objections, considerin
words the prisoner used after this, and aft
deceased was out of the room, and what f«
ed, since the jury have found this fact, wi
saying any more about it, the natural
striiction is, that this was only used by th
soner as a blind to the company, to oc
from them his real intention, till they
gone out of the room. As to thesecoD
stands ouoertain upon the verdict ; hot .il
uncertainty which can have no influence
the present determination ; for if Mr. C
bad shut the door, that would not akme
materially altered the case. As to the t
since express malice before appeared to
the prisoacTi the^mting thai net doei m

far thg Shurier »f WSliam Cower.

A. D. 179S>

M A« fint beat of pamoD continued
rtlhat the maliGe onolioiMd.
counsel for Mr. Ooeby farther objecteJ,
Mared there was a motual fitfiiting
K«er was shot ; for it is fband Uiat he
id Area slieiit wounds ; tlien it is not
.ibdrew first, or made the first assault,
ktktr was ahut ; and it was possihte a
■Ha <|aarrel might then rise, in which
tor Bjffbt be the aggressor, and there-
jafedsT verdict was uncertain in a ma-
pal. The answer to which is, what is
ilq^'s Case, Kelynge S7, cited before ;
'4UlsB, and do sudden qusrrel ap-
iiiaarder ; lor it lies on the iiartv in-
)to^Te the8uddeni|uarrcl; audtnere-
ijay not baTiug found anv such thing
!piNoer'a bvncnt, it is to be took there
taeh. This u said, supposing the latter
itrerdict could be considered, without
iif the fimner part of it : and that when
f|M]r went out of the room, the nrtsoner
bGowct wcflereoanciled. But however
%ht have been, b«ne it appears there
wcsnrilialifin, and therefore there can
Bigination of a new, original quarrel in
■sfter the door was shut. And as to
fk wounds the prisoner received, that is
nd; Ibrhe having malice against Mr.
(IbDugh there was mutual figbting, and
wer was wounded, yet, when he killed
»cr, it will be OMirdcs'.
ba Act in the special verdict, which
U on, was, when Mr. Gower was ask-
iIm destb4»ed, whether be had received
■di in a manner among swordsmen
Vr? He answered, 1 think I did ;
^ Ike deceased shewed, he was satisfied
Asa fair. The answer to which is
' A« if A have malice against B, and
■Mud fight, though the fight is never
'Mrding to the law of arms, yet if A
Jtvill be murder.

SKs the counsel for theprisoner princi-
died on to make this fact only man-
V, were Rowley's Case, 13 Coke 87 ;
ner's Case, Comberbatch, 407, 8.

13 Coke 87, the case was, that two
bting tog^her, the one of them was
d in the fiMse, and he bled a great deal
•e ; and so he ran three-quarters of a
lis fkxhetf who seeing him very bloody,
bis hand a cudgel, and went three-
of a mile to the other boy, and struck
D the head, upon which he died, aud it

bat manslaughter, for the passion of
r cnntioned. And there is no time,

law can determine, that it was so
bat it ahould be adjudge)! malice pre-
(Note, Theae are the words of is Coke

ieh the answer is plain, for the reaaon
Cro. 4ac. 396, which is the same case,
fiuher having no anger before, but
dvoked upon Uie complaint and sight
m'a blood, and in that anger beating
vUsh Im died, the Uw Mi^m^C^ ^ ^

be u|u>n that sudden passion. But that is, coi:*
sideriagwliat has been said before, clearly dis-
tinguishable from the present case ; besides it
may be added, it was but a little cudgrl he
struck with, from which no such fatal etent
could be reamnably expected.*

Turner's Case was this ; his wife complain-
ed the boy had not cleaned her ck)gs. upon
which Mr. Turner took up a clog, and struck
him on the head, and killed him ; and though
there was no oilier provocation, it was hehl
only manslaughter. But the reason of that
was, because the cloff was so small, there
could be no design to uoany great harm to tiie
boy, much less to kill him; and a master may
correct a servant in a reasonable manner for a
fault. And lord chid" justice Holt, in Comber-
balcb 408, says, that iu that case, it was an un-
likely thing, meaning, tiiat the dcjg should kill
the boy. The counsel for the prisoner, bein^
apprehensive of the authority of Mawgridge's
C-ase, besides the observationa they had made,
mentioned before, to induce the Court to look
upon that judgment, as not warranted by law,
endeavoured to distinguish the present case from
it, supposing it io be Taw. And lit, They said,
that in Mawgridge's Case, the bottle hit Mr.
Cope, and stuimed him ; but here the bottle did
not hit Mr. Gower, but only brushed some
powder out of his peruke. 3dly, in Maw-
gridge's Case, the bottle was full of wine ; here
it is not found to bsve been so, and therefore
must be took to have been empty ; and the size
of the bottle does not appear, it might be very
small. Sdly, Mawgridge drew his sword im-
mediately aller throwing the bottle, without in-
termission ; here Mr. Gower^s sword was first
drawn. 4thly, Mr. Cope nerer drew ; here
Mr. Gower not only drew the first, hut clashing
of swords were beard, so there must have been
fighting.

It is very true (so far as these facts will make
a difference) this present case is diKtinguishable
from Mawgridge's Case ; for that case was
determined only upon an implied malice (hut,
as I said before, was very rightly and justly
determined, as we all agreed), for strictly and
properly speaking, altlioiigh the word exprew-
malice is mentioned io the reasons given for
that resolution, yet it was but mahce implied.
But still this way of distinguishinjr the present
case from Mawgridge's, will lie ol no seryiceto
the prisoner, because, though all the juclg*a
heldUiis case was distinguishable from Maw,
gridge's Case ; it was in respect that t^^^is « a»
a much stronger case a. to the '"""ler th*
jury having foundfiicts which •»J'^?. J^^'^Vj^^Jy
U an expn.» inalic^ ags.ns^ M- ^C-wer

Upon the ^^«!« ™»"/^r\||^^^^^

concurrent op""«n f •" ^J^^ba^, John One!

• Vide Foster's lUporU, p. W4, Rowle^-^
CMe.

tff] 19 GEORGE I.

fkctioD, but tl •DDther time and place lie irniild
be reuily lo gire it to him, ind in the mean time
dciiral faim to be more civil, or to leave the
csmpany : tbereupon Jobn Mawgriilge rose
vp, and waa goio^ out of the ruom ; bdiI to (;o-
log, did (uililenly suatcli up a glasi boille lull
oTwiDe tUen rtaiiding upoo the table, and lio-
Imtly tlirew it at him, tlie said Mr. Cope, aiid
therewith ctrucL him upon the head, and im-
mediately thereupon, wiUiout any iDlermiiEi<»i,
drew his ■word, and Ihriut bim into the led

Ert lit' hit breast, orer the arm of one Robert
irtit), nut»ith standi D[r the tudearour Uied
by the caiil Martin to hiader Uawgridse firam
killing Mr. Cope, and gave Mr, Cope the
wouod in the iudiciment meDtioned, whereof
beiniitantly dieil. Butthejnry dofurtheraajr,
tfaat iuimcdialelv, in a little apace of time, be-
Iween Mawgriii^e's dniwiu<r hii anord, and
tiie giving tlie mortal wound by him, Mr. Cope
did ante from his chair where he sat, and took
Mwther bottle that then atood upon the table,
and ihrcw ii at Slawgridge, whicn did hit and
break hit head ; that Mr. Cope bad do iword
in hit haod drawn all the while; and that
•(ter Mawgridge had throirn the bottle, Mr.
Cope tpake not. And whctlier Ihii be murder
fir mautlaugbter, the jury pray the advice of
the Court.

A day being appointed fmr the retnlulion of
die Court, and the maralial required to bring
the pritouer to the bar, returard he wai e*-
ctped ; which being recorded, the Chief Juttice
(Holt) gave the opinion of the judgea in this
manner ;

Tbia Record being remored into Ihii Court,
thecaae haiii been argued before all the judge*;
■nd all of ut, except ray lord chief juttit'e Tn-
-VOr, arc of opiuiua that Mawgridge it guilty of
murder.

Tliia hath been a cate of great expectation.

This ditlinction between murder and man-
■taujfhler only, is occasiuDed by the ttatate of
13 H . 7, and other itatutet that took away the
benefit of clergy from murder committed by
mah'ce prcpeuKd, whiuh tlatuiea have been ttic
DccatioD ol many uire tpeculatiops.

The word " murder" i* known to be a tern
•r a deatriplion of boinicide committed in the
WOrat manucr, which is no where vied but in
thit itland, tud it a word framed by our Saxon
•ncavtoraiu ibereignof Canutus upun a pai lieu-
lar occasion, which appears by an uncontuited
■nthorily, Lamb. HI. In the laws of Edward
the Oonleatur : " Murdra qiiidem ioventa fuC'
>unt in diebus Canuli * lUgit, qui pott acqni-

* But according lo lord Fortescua; " Mnr-
der ii a Saxon woni, and to be fbuud in several
placea in the aticienl Haxoii laws ; and it of a
lery aucieol dale, ptabably at old ts tbp Haion
tongue itself, which it alioul 600 yeart older
than Canutut't time. We frequently in Saxon
aulhsra find the worda ■orttw-, narthtr, war-
Mar, vnilbsT or mvdar ; Bud tbafe coma from
Ike BDciaiil Buon ward mertk ; which ligsi-

3Via/ of Major Oiubif—
aitam Aogllam et pacificatam, rofnto I
An',rliK: TEmisit in Uaciam exercilum
Tbereupon a law was made. That ifai
Itthman ahould kill any of the Danes thi
leli behind, jf he were apprehended, b
be bound to underijio the ordeal trial
himself; and if the murderer were n

in eight davi, and alter that a mii
given, ilien if be could nut be found,
ihould pay 46 marks, which if not abb
it ahonld he levied upon the huiulied,
ion, 130, agrees with this account.

Tlioufih this law cea*ed upon llie (
of tbe Danes, yet William the Cooqt
vived it for the aecnrity of hit Normac
peara by Ids laws, after he had contira
Edward the Coiifessor'B laws. And I

' primo regoi, afterwards by hia
appears iu tbe addition to l.an)bc-rt)esl
"That if a man be found slain, he a!
taken to be a Freucliman, if it was ni
tliat he waa an Englishoiui, and the
waa bound to euquire, whether Ibe pet
waa an EnglishmanoraFrcachman."
inquisitions were taken before the f:on
returned to thejiittices io eyre, and if
found him an Englishman, then the
waa tn be discharged, which low w:
Englisbire, and the justicea in eyre \
bound to enquire thereof, until the stat
E. 3, which, aa it is mentioued in ii
waa abolished.

Ilcrehy a mistake npon the statute <
bridge it rectified, which it cap. 36.
drum de octero non adjudicatur coran
nriis, ubi per infortunium adjudicatun
locuru habeat murdrum de ioterfect
loniam tanlum, et non aliter." This
made upon a supposition that he tlmt I
person alaiu by misfortune should ba
but only to explain, or rather to take c
gour of the Canqiieror*t law, that ilu
should not be couipelled to find out t
slayer ; or if he were found out, lie ah
undergo the penalty of that law. F<
taw ttood, or was interpreted before i
lute, if a man was found to lie slain, it
ways inteuded, 1. That he was a Ftc
3. That he was killed by an Eoxlishi
That killing was mutdtr. 4. II' any
apprehended to be the murdcnr, be i
tried by fire and water, though he ki
liy misfortune ; which was exicndet
raacon and jutticc in favour of the M

fie* a Tuilent death, or sudden destriic
SDmelimes significt murder,in the prcs
ofourcoinmoD lawyers. From hem
thf barbarous Idtin term wurJruM |
drum, and tba vedjs mordraiv, nurd
mordidrare ; which arc of much gre:
quily than king Canutut, who began
but m lOlS. Now give ne leave lo
the true derivation of eur word m
wb«^ I Ihi^ maniftatly cquuh frooi
morti itn." f onmow iJaw'a Pt«£
lUperti.

MmKgridge^s Cote*

SMitttfi frwkillfld by oiitforMM,
bim wai not m danger of death,
vai DDt M&tj, For. Mitb Bncton
e Ibe bltef «ld of If . S,) fol. 1S6,
Ufleib a man by mndbrtaDe, nM to
fed." 5. Iflheittalieraetor was not

■ tbtf csMRitTy fi^aa to be anicTMd,
b itatato of MaiMridffe, if it was
tf dw peraoB alaiD was d rreachitaaii,
M 1^ mialbrloiip, then tho onuntry
I be amerced if the mnnslayeir was
; m if he were tafceti, be should not
his ordeal trial. This seems to be
■sning of that statata.

Bsadly, it will appcartoa demonstra-
kfbre that afatnte, be that killed an

■ ' tier infbrtaDinm ' was never in
r of death ; for tbb slatme of Marie-
s made 59 R. S. The statnte of
tarta waa consummate 9 fl. S, and
IPS, ** That every one iwsprisoncd ftit
rf a maai, and riot thereof indicted,
i|;ht iHirsae the writ DeOdio et Atia ;
ns roond that the person imprisoned
I * se defcndendo,' or * per infor-
Btd not ' per f^loniam,' then he was
i." Wfaieb shews that he was not
sf death ; for if he had, he would not
let to bail, « Inst. 42.

1 bare ^veo a true aeconnt of the
ke word M order, what it w«i when
e time of Caniftbs) a Dane, and since
a the Confjueror) when a Frenchman
I; for, as it was then sniiposed in the
^snntns, the Kn<;1ishmen hated ihe
•D the account of thrir nation thst
iritbem, and would u{K)n all orra-
ktbeir de^truriinn, as thr>y did of a
lUe Dumber of them in the time of
li Ike Saxon kin«r ihnt )trrrciled Cai^n-
veone; so tiie (-oni|U«'ior bad the
■i to suspect the safety of his Nor-

ads, as sppeara hy the Confrssor's
Bb. 141, the secret or iDKidious killing
m as well as a foreigner was declared
der. Bracton, ISO, 134, 155. Mur-
H de6ffed, *' Est occulta homiiium
m et fiotorum occisio matiu hominuin
frpetrata." With which agrees the
books of Britton and Ffcta : only in
brrigner it was penal to the country ;
itive.

niay be necessary to shew what was
rstrKMl by Homicide or Manslanj^hter.
'23, mentions the worst {tart iif it,

vulantary liomicide, defined in this
* Si quis cx cert a Rcientift ct in a«isul-
litato, ira, vol odio, vrl causd lucri,
. in felonift, ac contra pacem Dominr
lem interfecpfit :" if one knowinely,
fomeditateil a<)«aiili, by an^er or ha-
' hicre-sake, should kill another, this
inted maoslau^jrhter ; if it be done
' saith Bracton, it is ftmrder : that
e difference there was between the
s otfaer:

A.D. 1706.

[69

It appearb, that sinee that of Bracton the no*
tioA of moider is much altered, and coropre«
bends all homicides, whether privately or pub*
licly committed, if done by nsalice prepensed.
With this airreea Stam. PI. Cor. 18 b. << At
this day (saitb he^ a man may define murder in
another manner ttian it ia defined by Bracton^
Britton and Fleta : If any one of malice pre-
pensed, doth kill another, be he Enfflishman or
foreigner, if secretly or publicly, tnat is mur-
der: this waa the definition long before the
making of the slatntea of 4 and S3 H. 8, and
the other statntes that took away clergy." To
define murder, there must be mafitidprsteogitatd^
as also murdravit : so that if an indictment ho
thai the party muiHlravitf and not ex malitU
pracogitatA^ it is but manslaughter, Yel. 204.
2 Cm. 98S. 1 Bid. 141, Bradly and Banks. So
if it be ejr mnlUiS pr^teogitaiAf omitting mar-
drarity it is but manslaughter. Dyer S61. PI.
Sd->d04. PI. 56. Vide Stat. 10 £. S, cap. 2.
The parliament complained that mnrderers,
&o. Were encooraged to offend, because nardona
of manstanghtefs were granted ao easily ; tha
act therefore prohibits the ^nting thereof.
13 R. 9, recites the same mischief, and great
damage by treasons, mnrdera, &c. because par^
dons have been aasily granted : therefore tha
act doth provide, *< That if a charter for tlia
death of a man be alleged before any justice,
in which charter it is not specified that he of
whose death any such is arraigned was mur-
dered or slain by await, assault or malice pre*
penscd, it shall be enquired, whether he was
murdered or slain by assault, await, or malicd
pre|)ensed ; and if it be so found, the charter of
pardon shall be disallowed.'* This is a plain
description of murder, as it was taken to he
according to the common understanding of
men.

Ever since the killing of a man by assault of
malice prepensed hath been allowed to he mur-
der, and to com prebend the other two instances.
Bnt Ivecanse that way of killing hy poison did
not come under the ancient definition of Brac-«
ton, (^c. which is said to be manu hominumper*
ptlrnta^ or of this statute of 13 R. S. There'*
fore by the statute of 1 E. 6, c. 13, it was en-
acted, *' That wilful poisoning of any person
should be accounted wilful murder of malice
prepensed."

One thing more is fit to be observed, that in
all indictments for murder a man is not charged
positively, that he did murder the person slain,
hnt that he ' ex malitift prsBCOgital^. in ipsum
' inKultiim fecit, ac cum quoilam gladio,' he
gave him a wound whereof bed ie<l : * Et sic ex
* maliti^ pra:cogitatft ipsum murdravit,* so the
mnrder is charged upon him by way of conclu-
sion, and as a consequence from the antecedent
matter that is positively alleged. To come
close to a state of the present qtiestion, it doth
appear that Mawgridge threw the bottle at
Mr. Cope without any provocation given to
him ; for the diflercnce was betwren him and
the woman that was there in com|tanv, and his
bebaifiour was so rude and dista^tcful'as did m*

es]

12 GE0B6E I.

duce eaotain Cope to desire him to leave the
room, wtiere he was only ajg^est to him, and
there by his permission ; this Cope might rea-
sonably do, which could be no cause to provoke
Mawgridge to make the least assault upon
him : therefore I shall maintain these three
positions :

1. That in this case there is eamress malice
by the nature and manner of Mawgrid^e's
throwing the bottle, and drawing his sword im-
mediately thereU])OD.

S. That Mr. Cope's throwing a bottle at
Mawgridge, whereby he was hit and hurt
before he gave Mr. Cope the mortal wound,
cannot make any alteration in the offence by
reducing it to be of so low a degree as man-
slaughter.

3. 1 shall consider what is such a provoca-
tion, as will make the act of killing to be but a
manslaughter only.

1. Here is express mah'ce, that appears by
the nature of the action. Some have been led
into a'roistake, by not well considering what
the passion of malice is ; they have construed
it to be a rancour of mind lodgetl in the person
kllliug, for some considerable time before the
iM>mmission of the fact, which is a mistake
arising from the not well distinguishing be-
tween hatred and malice. Envy, hatred, and
malice, are three distinct passions of the mind.

1st. Envv pro|)erly is a repining, or being
grieved at the happiness and prosperity of an-
other, * Invidus alterius rebus macrescit opimis.'

2dl3', Hatred, which is oc/ium, is, as Tully
•aith, ira inveterata^ a rancour fixed and settled
in the mind of one towards another, which ad-
mits of several deerees. It may arrive to so
high a degree, and may carry a man so far as
to wish the hurt of him, though not to perpe-
trate it himself.

3(ily, Malice is a design formed of doing
miscliief to another; 'Cum quis dat& opeiS
'male agit,' he that designs and useth the
means to do ill, is malicious, 2 Inst. 42. Odium
signifies hatred, atia malice, because it is eager,
aharp, and cruel. He that doth a cruel act vo-
luntarily, doth it of malice prepensed, 3 Inst. 62.
By the statute of 5 Hen. 4, If any one out of
malice prepensed shall cut out the tongue, or put
out the eyes of another, he shall incur the pain
of felony. If one doth such a mischief on a
sudden, that is malice prepensed ; for,saith mv
hird Coke, ** If it be voluntarily, the law will
imply malice." Therefore when a man shall,
without any provocation, stab another with a
dagger, or knock out his brains with aliottle,
this is express malice, for he designedly and
|iurposely did him the mischief. This is such
an act that is malicious in the nature of the act
itself, if found by a jury, though it be sudden,
and the words ex malitH pr^cogilatd are not in
the verdict, 1 Cro. 131. Ualloway's case, who
was woodward of Osterly-park, in Middlesex ;
a boy came there to cut [steal] wood, whom by
obanoe he espying, and the bov being upon a
tree, he immediately calls to him to descend,
whish thf boy obeyingi HaBoway tiad him to

Trial of Major Xindf^-^

an hone's tail with a oord that t]
then gave him two blows, the hon
and brake the boy *s shoulder, wher
This was ruled to be murder by ail
and barons, except justice Huttoo
doubted thereof ; and that was a si
than this ; for there was some kind
tion in the boy, who was stealing i
the park, of which Halloway hai
and it cannot be reasonably thouj
designed more than the chastisemen
and the horse running away in tl
was a surprize to Halloway ; yet ii
boy did not resist him, his tying
horse's tail was an act of cruelty
whereof proving so fatal, it was i
be malice prefieused, though of a s
in the heat of passion. This case
in Jones, 198. Pal. 585. And t
that the Court could determine it t
prepensed upon the special ma
Crompton 23. Two playing at ta
in their same, one u|>on a suddc
other with a dagger : this was held
der by Bromley at Chester assiz
So in this case, if the bottle bad k\\\\
before he had returned the bottle
gridge, that would have been mui
all manner of doubt.

in the second place, I come uow
whether Mr. Co|)e's returning a
Mawgridge before he gave him
wound with the sword, shall have i
of influence upon the case : I hold
Because Mawgridge bj^ his throwii
had manifested a malicious design,
his sword was drawn immediatel;
the mischief which the bottle roigi
of. Thirdly, The throwing the ho
tain Cope was justifiable and It
though he had wounded Mawgridg
have Justified it in an action of
battery, and therefore cannot be ar
tion to Mawgridge to stab him will
That the throwing the bottle is a de
of malice is not to be controverted ;
that violent act he had killed Mr. C
been murder. Now it hath been i
A of his owuialice prepensed asi
kill him, an^B draws his sword i
A and pursues hun, then A for his
gives back, and retreats to a wall, B
ing him with his drawn sword, A
fence kills B. This is murder in
having malice against B, and in
thereof endeavouring to kill him, is
for all the consequences, of which
original cause.* It is not reasoni
man that is dangerously assaulted,
he perceives his life in danger from
sary, but to have liberty for the sec
own life, to pursue him that mal
saulted him ; for " he that hath
that he hath malice against anoth<
to be trusted with a (hmgerous wc

* 8ec East's Picas of tha Ciowi

Mmogridge*$ CoMe,

bit. ^8. Bak 49. And wo molted
indgn, 18 Car. 9, when they met in
ni, in |ireparation for my lord Mor-
. I>alt. 979. If A of malice pre-
Nharpe a |iwtol at B, and then riina
maea him, and A tanw back, and in
dfeoce kills B, it ia murder. Tliis I
ffDod lair ; for A had a maliciniiB in*
tf B, and hit retreat after he had dis-
■ ^d1 at B, waa not becaose he re-
I for his own aafety.
tdnri, there are mutual passes made
bt comhaunta, yet if there be oricnnal
m» tlie parties, it b not the iiiter-
'Uons will make an alteration, or be
ilion cf the offence of killing. There-
in if Maw|^idge had thrown the bottle
fi^ and Mr. Cope bad returned ano-

him, and kit nim, and thereupon
^ had drawn his sword ami killed

ft would have been murder. Some
hat tliere is a diflerence betwocn the

- that the assault by the pistol, and
fa dud was express malice, but this
lUce implied. Surelj there is no dif-
sr malice implied is prepensed, as
F there had been a proof of malice, or

- some considerable time before the
be stroke gif en, or an attempt made
implied, is as dangerous as a stroke
a malice expressed, therefore may be
y resiMed. Thia very point was also
i by the twelve judges at Serjeants'-
hy them resolved to l>e murder upon
BB ot my lord Morley 's Case. When
Kieks another with a dani^^erons wea-
mt any provocation, that is express
"W the nature of the act, which is
Fk flefinition of mulice implied is
svx expreaa in the nature of the act ;
ranan kills an officer that had autho-
»irrest hin iierwn ; the person v»ho
is defence of himself from the nrrest,

fe Foster, in his Reports, p. 5rr4-5,
Uwir ridge's Case, " lie, upon words
letween him and Mr. Cope, threw a
] great violence at the head of Mr.
i immediatf ly drew his sword, Mr.
nied the bottle with equal violence ;
th lord Holt, lawful and jusiitiable in
so to do: for, as he ari^ueSh a little
:, He that hath shewn that he hath
linst another, i«) not fit to lie trusted
ij^eroiis weapon iu his hand." — I'pon
! jud^e observes, '* It was upon this

presume (and possibly , too, u|>on the
ou p. touch ini; the arrest of a person
pTcn a dangerous wound), that the

in that ca«e of the marquis De
irho stab?>e«l Mr. Marley sitting in
• Annec3p. 16,) di^chnr«^e<l the party
oppoMfd lo have <;ivtrn hini the mor-

iVom all nmiinf^r of pmsecntion on
at; and dechrcd the kiliin;^ to be a
I necessary action/' Forruer Edi-

A. D. 1706.

f66

is gailty of murder, because the malice is im-

{died, for properly and naturally it was not ma-
ice, for his design was only to defend hirovelf

lesign
from the arrest

S. I come now to the thinl matter proposed,
which is, to consider what is in law such a pro-
vocation to a man to commit an act of violence
upon another, whereby he shall drprive him of
his life, so as to extenuate the fact, and make it
to he a manslauQfhier only. First, Negatively^
what is not. Secondly , Positively, what is.
First, No wonls of reproach or infamy are suf-
ficient to provoke another to such a degree of
anger as to strike, or assault the provoking
party with a sword, or to throw a bottle at him»
or strike him with any other weapon that may
kill him; but if the person provoking h%
thereby killed, it is murder.

Jn the assembly of the judges, 18 Car. 9^
this was a |ioiut positively resolved.

Therefore I am of opinion, that if two are io
company tog;pthcr, and one shall give the other
contumelious language (as sup|>osc A and D),
A that was so provokeil draws his sword, and
makes a pass at B, (B then having no weapon
drawn) but misses him. Thereupon B draws
his sword, and jmsses at A. And there beinr
an interchange of passes between them, A kilb
B, J hold tliisto be murder in .4, for A'spassat
B was malicious, and what B aAemt'arda did
was lawful. But if A who had been so pro*
voked, draws his sword, and then before he
passes, B's sword is drawn ; or A bids him
draw, and B thereupon drawing, there haf»pen
to l>e mutual passes : if A kills B, this wdl be
but manslaughter, because it was sudden ; and
A's design was hot so absolutely to destroy B,
hut to combat with him, whereby he run the
hazard of his own life at the same time. But
if time was appointed to fight (suppose the noxt
day), and accordingly they do ivjjit, it is inur-
der in him that kills the other. But if thry go
into the field immediately and fight, then but
manslaughter. Muppose u|)on provoking Ian*
guago given by li to A, A gives R a Im>x on the
ear, or a little blow with a stick, which hap-^
pens to be so unlucky that it kills B, who
might have some imposthunoe in his head, or
other ailment which proves the cause of B's
death, this blow, though not justifiable by law,
but is a wrong, yet it may be hut manslaughter,
because it doth not appear that he designed
snch a mischief.

Secondly, As no words arc a provocation, ao
no affronting gesturt»s are KufK<:i<*iit, th'^u^h
never so reproachful; which p«i»i "a* *^-
judgttl, 8 Cro. 7/9, Wats and Biniui, in aL ap ■
peal of munler.

There having been aqnarnl lMtwe.n A i^id
B, and B was hurt in tlm fr.i> i »>»! about i»p
davs after B came and iimmI. .» «•> iii«»ni- u
A,' who thereupon striirk hu" "I"" "'* ^ ' *^
the leg, of which he iti«i..i.ilv «»i«d It "t^
murder in A, for tin- nllM.iiin.^i hini in ■ ■
manner was not any pinvm ttii«Mi to A, :;

that violence to B : . ■ l t

There bath bsen aii'»thi-» •■*■«. whict i

.1^^-

«7]

IS GEORGE I.

halli been the occasion of some mistake in the
dcHriiiion of qupstious of this kind, Jones 433,
D. ^Villiams's Case, he being a Welshman,
upon St. David's day hayin^r a leek in his hat,
m certiiin |»cr8on pointed to a Jack of Lent that
huoj^ lip Iianl l>y, &ud said to him, Look apon
\oiir countryman ; at vihich D. Williams was
much enras^ed, and took a hammer that lay
upon a stall hard liy, and flung^ at him, which
missed him, but hit another and killed him :
he i%as indicted upon the statute of stalibing'.
Resolved, He was not within that statute, but
guilty of muuklauufhter at common law. 1
concur with that jodijrment, that it is not within
the statute of stabbi »(,>-, for it is not such a
weapon, or act that is within that statute, nei-
ther could he be found guilty of murder, but
only «)f manslaughter, for tlie indictment was
for no more. But if the indictment had been
for murder, I do think that the Welshman
ought to huve hren convicted thereof, for the
provocation did not amount to that degree, as
to excite him designedly to destroy the person
that ga?e it him.

Thirdly, If one man be trespassing' upon
another, breaking his hedges, or the like, and
the owner, or his servant, shall upon sight
thereof take up an hedge-stake, and knock him
on the head; that wdl l»e murder, because it
was a f iuleot act beyond the proportion of the
provocation, which is sufficiently justified by
llallowa^ 's Case, who did not seem to intend
so much the destruction uf the young man that
stole the ivood, as that ho should endeavour to
break his skull or knock out his brains, yet
using that violent and dangerous action of eying
him to the horse's tail, rendered him guilty of
murder.

If a man shall see another stealing his wood,
he cannot justify beating him, unless it be to
hinder from stealing any more ; (that is) that
notwithstanding be ne forbid to take any, doth
proceed to take more, and will not part with
that which he had taken. But if he desists, and
the owner or woodward pursues him to bea.
him so as to kill him, it is murder.

If a man goes violently to take another man's
goods, he may lieat him off to rescue hit gtKMls,
9 £: 4, :281, b. 19 Hen. 6, 31. But if a man
hath done a trespass, and is not continuing in
it ; and he that hath received the iniury shall
thereupon beat him to a degree of killui^, it is
murder, for it is apparent malice; for m that
case he ought not to strike him, but is a tres-
passer for so doing.

Fourthly, If a parent or a master be provoked
to a degree of pusion by some miscarriage of
the child or servant, and the parent or master
shall proceed to oorrect the child or servant
with a moderate weapon, and shall by chance
give him an unlucky stroke, so as to kill him ;
that is but a min^enture. But if the parent
or roaster shall use an improper instrument in
the GorrcGtioo ; then if be kills the ehild or tlie
servant, it is murder : and so was it resolved
by all the judges of the King's- bench, with the
eoBoorrMoeofthe JonI " "^'" ""''

Trial of Major Oneb^^

in a special verdict in one Grays' Case, lc=

at the QUI Bailey, 10th October 18 Car. 8,
removed into this court, Kelyng, p. 64. (ZI
being a smithy B was his servant ; he c^
manded B his servant to mend certain
belonging to his trade ; afterwards he
servant being at work at the anvil, €hray
his servant whether he had mended the
as he had directed him. But B the
having neglected his duty acknowledged
his master ; upon which tue master wt
and tohl him if he would not serve hi
should serve at Bridewell; to which the
vant replied, That he had as gooil serve in
well as serve the said Gray ; whereupon
said Gray took the iron-bar upon which
his servant wns workint*', and struck his
with it upon the skull, and thereby b^-
his skull, of wliich the servant died. '"T
was held to lie inunler; yet here was a ^
vocation on a sudden, as huddeu a resentos
and as speedy putting it in execution;
thou(;li he might conect his servant X
tor his neglect and unmunncrliness, yet exec
ing measure therein, it is malicious. £▼«
one must perceive that this last is a &troii|
case than this at bar.

First, Gray was working honestly and fair
at his trade, and justly calling to Lis serrai
Un- an account of his business : this miFcreii
was in the actual violation of all the rulni
hospitelity.

Secondly, Gray*s action was right as to th
striking his servant by way uf correction ; kl
the error was in tiie degree being too vioM
and with an improper weapon. This uf Mas
gridge was with u resolution to do mischief.

Thinlly, lie liiul not the least provocatii
from Mr! Cope, until after be had made tl
first and daugenius assault, and theu nurwi
it with thie di-awing his sword to second it, b
fore Air. Cojie returned the other bottle. B
Gray had a provocation hy the disappointmi
his servant gave him in neglecting his busiuM
and returning a saucy ausiier.

The like in obstinate and perverse cbildre
tliey are a great giief to jmrents, and wb
found in ill actions, are a great provocatio
But if upon such provocation the parent thi
exceed the degree of moderation, and tberal
in chastising kill the chikl, it will be raunk
As if a cndgei in the correction that ii used I
ofa large size, or if a child be thrown dov
and stamped upon ; so said the lord Bridgm;
and justice Twisden, and that they ruled it
in their several circuits.

5. If a man upon a sudden disappointOM
by another shall resort violently to thatoth
man's bouse to expostulate with him, and wi
his sword shall endeavour to force his entraoc
to compel that other to perform his promise,
otherwise to comply with his desire ; and tl
owner shall set himself in opjiosition to hii
and be shal) pass at him, and kill the owner
the bouse, it is murder, U Roll. Hep. 40
Clenent agtinal air Charles Blanl, in an a
peal of mordcr. The case wai| that Cleme

]

Matogrid^e^s Case,

pnniKd a do^ to xir Charles Blunt ; and
n^miH leconliii^ly to deliver liitn, re-
nd bni die dnpr home to his house : at
■rCbiriesBhint fetched his s\7ord, aud
ti CleowDt's house i'nr the dog. Clement
It the door, and resisted his eatry. Blunt
fcilli Clement. The jury were
nd fboDd this fart in sir Charles
II be bot manslaughter. Doddrid^^
«M4|>fjroroplDion it %vas murder. But the
" ^ intioe was a little tender in his di-
litM jory. But Holls makes this re-
Ifeilitwu not insisted u;ion by the a p-
■■■AooodkI, that Clement was in the de-
mm tf bit bouse, and that Blunt atucked
ttllNtein: it was without all qnes-
■■dcfithoo^h of a sudden heat, for there
MSMBoh made by Clement upon him nor
lyof bii friends, but all the violence aud
ni€p sir Charles Blunt*s side.
tbng Id tbeae particulars shewn what u
I a BTOfoeation sufficient to alleviate the
^al^ng, ao as to reduce it to be but a bare
'nde. I viJI now, secondly, ^ve some par-
rdtij aucb as are supported by autho-
Wf aad general consent, aud shew what are
imailoired to be sufficient provocations.

fat, If one man upon an^ry words shall

■bsBasaanlt upon another, either by pulling

iB^tbeiiose, or tillipius; upon the forehead,

■tfW that is so assaulteil frhall draw bis sword,

■'iMDediately run the other through, that is

!■ ■aasiaoi^ter ; for the peace is broken by

iifOMMi killed, and with an indignity to him

itt laerired the assault. Besides, he that was

■ Aotted might reasonably apprehend, that

bilkat treated him in that manner might have

iMifvthfr design upon him.

Tmk ii a case in Stiles, 4G7, Buckner's
flat Buckner was indebted, aud B and C
■■r to bis chamber upon the account of his
■vitBria demand the money, B took a sword
ktt kaag up, and was in the scabbani, and
iMiattbe door with it in his hand undrawn,
I krtp the debtor in until they could send for
ftadiff to arrest him ; thereupon the debtor
nk oat a dagger which he had in his pocket
id Blabbed B. This was a special verdict,
id atfjudged only manslaughter, for the debtor
■a iokulted, and imprisoned injuriously with-
M any process of law, and though witliin the
ardsot'the statute of stabbing, yet not within
c reason of it.

fettoondlyy If a man's friend he assaulted by
oChfT, or engaged in a quarrel that comes
bhiws, and he, in the vindication of his
Old, shall oo a sudden take up a mischievous
■rament and kill his friend^s adversary, that
bat nn«DsUught«r : so was the case, 12 Rep.
[. If two be fighting together, and a friend
[ike one takes up a bowl on a sudden, and
ik it breaks the skull of his friend's adver-
ry, ef which be died, that is no more than
BHhO|{bler. 80 it is, if two be tighting a
■I, Ihougb upon malice prepensed ; and one
■M and takes part with him, that he thinks
■f kite tbe dindTaiUage in the combat, or it

A. D. 1706.

[70

I may be that he is most affected to, not know-
ing of tlie malice, that is but manslaughter, PI.
Com. 101, John Vaughan and Salisbury.

Thirdly, If a man perceives another by force
to be injuriously treated, pressed, and restrain-
ed of his liberty, though the person abnsed doth
nol complain, or call tor aid or assistance ; and
others out of compassion shall come to his
rescue, and kill any of those that shall so re-
strain him, that is manslaughter, 18 Car. 2,
adjudged in this Court upon a special verdict
found at the Old -Bailey, in the case of one
Hugett, 18 Car. 2, Kelyng, p. 59. A and
otbors in tbe time of the Dutch war without
any warrant impressed B to serve the king at
sea ; B quietly submitted and went off with
the press- masters ; H^igett and the otliers
pursued them and required a sight of their
warrant ; but they shewed a piece of paper,
that was not a sufficient warrant : thereupon
Hugett with the others drew their sword j, and
the press-masters theirs, and so there was a
combat, and those who endeavoured to rescue
the pressed man killed one of the pretended
press-tuasters. This was but manslaughter ;
for when the liberty of one subject is invaded,
it affects all the rest : it is a t>rovocation to all
people, as being of ill example and pernicious
consequeuce. All the judges of the King's-
bench, viz. Kelynge, Twisi^en, Wyndhaiu und
Moreton were of opinion, that it was murder,
because be meddled in a matter in which he
was not concerned : but the other eight judges
of the other courts conceived it only man-
slaughter, to which the judges of the Iviug's-
bench did conform, and gave judgment accord-
ingly.

Fourthly, When a man is taken in adultery
with another man's wife, if the husband shall
stab the adulterer, or knock out hJH brains,
this is bare inunsluuglit(*r ; lor j( alousy is the
rage of a man, and adultery is the hii^hest in-
vasion of property^, 1 Vent. 168. Baymond
213, I^lanning's Case.

If a thief comes to rob another, it is lawful to
kill him. Aud if a man comes to rob a man's
posterity and his ftimily, yet to kill him is
manslaughter ; so is the law, though it may
seem hard, that the killing in the one case
should not he as justifiable as the other. Lev.
XX, ver. 10. ** If one coininitteth aduhi^ry
with his neighbour's wife, <'ven he the adul-
terer and the adulteress shall be put to death."
So that u man cannot receive a higher provo-
cation. But this case bears no proportion
with those caMos that have been adjudged to be
only uianslausfhter, and thrrefore the Court
being so advised doth determine that Maw-
gridge is guilty of murder. Mure might be
said upon this occasion ; yet this may ut pre-

* in such a case the Court of Justiciary in
Scotland admitted the wife of a piuiuel upon
his trial for nuirder to give evidence that the
pannel discovered the deceased in the act of
ndnltery with her. See Christie's Case.
ai'Uurin N** 92.

71] 12 GEORGE L

sent safBee to Mt the matter now ia question
in its true lii^bt, to shew how necessary it
is to ap|>ly the law to exterminate such noxi-
ous creatures.

Upon this confiction the Court did direct
that process should be issued against Maw-
gridge, and so to pnicecd to outlawry if he
cannot be retaken in the mean time. *

The case was, VIr. Cope (a young^ branch
of tlie Co[ics of Rrains«*l, in Hampshire, harts.)
havini; i^ot a lieutenant's c«)mmiss:on ;in the
guards, invited some officers and other geutle-
men iodine with him at thu Dolphin tavern in
Tower Kire«ft, June 17, 1706i in order to wet
bis commission ; one of the gentlemen t«K>k
Ma^reridge aloiiif with him, telling him he
would be as welcome to Mr. Cope us any of
the company ; upcm that he went, and after
dinner wa« over, and paid for by Mr. Cope,
they all staid a while longer, and hud more
wine brouifht in, and paid half a-cro«vn each
for their club ; then they broke up, ami most
of them went away ; but Mr. Mawgiidge and
the rest being invited by Mr. Copt: to the cuard-
room in the Tower, went with him, and callrd
for wine. Two bottles were accordingly
brought ; and as they were dnnking, a coach
came to i\\q guard- room door with a woman
in it (of no very mudest behaviour), and asked
for capt. Cope ; whereupon he and Mawgridge
went to the coach door, and brought her into
the guard-room ; where havinje been a*while,
she cried, Who shall pay ror my coach ?
Upon this Mr. Mawgridge said, I will, and so
discharge<l the coach ; then he offered to salute
her, but she ^rejected him, and gave him ill
words ; to which he made returns of the like
kind ; on which lieut. Coiic took the woman's
part; and then Mawgridge demanded satis-
laction of Mr. Cope, in order to iirovoke him
to tight, &c. iko, and killed Air. Cope. Upon
tliis Mawgridge was tried at the Old -Bailey in
July 170(3, for the murder, and a special ver-
dict found, wherein ail the particulars are re-
lated, as before- mentioned: — But before the
arguing the special renlict, he ma<le his escape
out of the Marshalsea, where he was confined ;
and that night went to his father, major Maw-
gridge, who with his wife (Mawgridge's
mother-in-law) washed and rnbbed him all
over with green walnut shucks and walnut
Hquor to disguise him, and then all three set
out in the night, and walked above 30 miles
into Essex, where the father gave 100 guineas
lo a master of a Tessel, near Colchester, to
carry him safe to Holland, which he did ; there
be was concealed above a year and half; for
though he was a very hanusome man, he was
80 disfigured scarce any oue knew him; he
spoke French and Spanish generally and mighty
well ; but at last lieing at a tavern in Ghent in
Flaudera, and a little too merry, he spoke Eng-

Trial of Major Oneby^ tfc»

[

lish so fluently, and by some expressions
dropi, became suRpected, seized (a large :
ward having been offered for apprebendi
him), and on examination found to be the m
who killed Mr. Cope, was brought over
England in March 1707-8, and being brou|
to the King's- liench bar, received sentence
death, and was executed at Tvbum, on \V<
nesday, April SB, 1708, with William Gre|
for high-treason.* The ordinary says, Ma
crriilge went in a coach with him (and Gregu
a Klt^ge) to Tyburn; '' That he submit
ivillini;ly to his sentence, owning the justici
it, though he declared he had no premediti
malice uGrainst the gentleman he so uof
tunately killed. He said, he heartily repen
of it, anil praved that Goii would wash away i
stain, and deliver him from the guilt of tl
blood which he had so shed. He owned t!
he had been a very great sinner, but was m
that he had any ways offended God and m
and begged pardou of both. That he boj
God M'Ould siiew him mt^rcy in another wo
{>ecanse he was always giieving for his si
and particularly for this, ever since he I
made his escape ; and though he had no
prehension of lieing brought lo condeuinal
here for it, it was still continually liefore h
and the remembrance of it was painful to b
He made strong resolutions to live i»therw
and was always prayin:; to God to pardon h
and to keep him for the future, tie ackn<
lodged the justice of God had overtaken h
and would not suffer him to live long
punished for tliis heinous crime: He decli
his being in charity w ith all the world, e
with those who had brought him to this
puniiihment, and prayed for the conversion
all wicked persons, desiring they would t
wanting by him. He told me, he was ak
40 years of age, boni at Canterbury oi g
parents, and brought up in the Church of E
land; that b(»tli his father and ancefst«>rH
had the honour to serve the crown for aiNive
vears as drum- major; and that he him
had received a very good educatiiNi,
brought up genteelly, though he was lor a c
siderable time kettle-drummer to the first ti
of guards, and was a going with a commisi
into the army when this melancholy acci<
happened." — Major Mawgridge, on hi« s<
execotion, which hail no great an effect on I
could not be prevailed on either to eat or di
for three nights and three days, and n
about like a madman ; he afterwards beha
at times like one distracted, drawing his 8w<
and threatning to munier his wife, obliging
to kneel down for him to stab her. Sec. and 1
relenting. In short, he was never afW.r eaa
in his right senses ; movipg about from plac
place, though he lived to near 80 years of <

* fieo bit CMe» tqI. U, p. 1971.

Trkl tfJamt Carttq^

A. D. 1738.

C74

4^. TIk Trial of Jaues Caknegie, of Finhaven, before the Court
of Justiciary (in Scotland), held at Edinburgh, July 35, for
the Murder of Charles Earl of Strathmore: 2 Gkouce II.
AD. 17S8.

Cob Jwmiim, S. O. N. Bwi* Irnta in no-
mtammim Doom Burgi de Eilinburgl)
MMaaialoDM Henui Jnlii, HtJIerimi

t^lmmmtmnam ngaitoo ocuto, per ho-
mmA» TirM AUaniuai Cockburne de
QnaMan, Jonimriuin Clericum, Dd-
■ JaeeboiB HuikcDSie de Roy*toun
~ " Tmmm CaUarwood dc Pvlbnin,
■ DiTidem Enkina Je Dud,
I Gmkerain Pringle de New-
hi, « Hngklniin Andmin Fletcher de
KIbb n, CommiMiaii trio* J otticiariB, diet.

CiiTM legitime affirmato;

Ibmi Curtice of FiahaTm, prisoaer io tbe
UMfa vF EdiDbiirgfi, paoDcl.

TEDa

lofStntbrnore, end Mr. James
Ifi^ knther-gennui and nearent or kin to
AidMCMi Charlea carl «f Strathmorr, with
— aiMaadal tbe iiwlanceaf Dancan Pi>rbnr,
^ fe iaijriij'« advocate, for hia bigliDeai'i
Mnttifbrlbe crime of wilful and premedi-
t^mmitr committed by bim upon the penun
if Ac nid Cbarln earl of IStrallimore, as is
MnfriljoiPnliunH in the indictment raiwd
■fMhin tbrreanent, which is as liillnwH :
B of FinhaTei

I iiitoTdbM.ih uf Gdinbuttrh. vom
' mittmfl. at ttiP inilaiice of Siiinn

icteil

•fteilhiFiure, and Mr. Jiinirs Lyi
l^^n and oenrett of kin lo tbe dpceawil
CMrlnnrlot Stnilhmarc, ntih conrnnrseHnit
mUtrmtttnc* n\ Dunnn Forbrs, wq. hi* ma-
f9j't a^TOL-nte, for his hi[{line«s'ii inieiv«l :
tatabere. by the laws of Gud, tbe tan ol nn
■vp, tbr rommnn law, and the manicinal law.
■d practtcr nf ihii kiiiKdom, as well at ilit-
Iswt of all well-if"*erD«d realm*, wilful eod
fnneditate murder, anil all mnrdcTand homi-
ng, or heini{ art and part ibpreol', ere moai
•tpiaaiii crime*, and ivrerely punishable ; ypl
>*eit t<, and nf verity, that yvu hare prenumeil
m ciHiimti, and are i;iii1iy, actor, art and
fan.uf ill, iir nne fir other ot ihefnTi-said hiirriil
CTAra: in ao tar at, hailnfr BCausrlMs ill- villi
■d reitentment agaiott (hedeeesttCliariPseiirl
rf Ktraihmore, you ganceired a deadly hutred
■d malict! airatuit him ; and shaking; otf all
fear of God, and regard to theforesaiil Iniiilalile
hwi, on Tbunday the Wh o)' May, in thin pre-
■aiyear, 1738, or one or othemftlie day* ol
ftr aid nwiitb, about the Imiir of eight nr nine
'fllic night of that day, or some other hour iif
lUi day a* oigbl, npon the alnel of the town

of Forfar, within the coanty of Forfar, you did*
with a dtawD aivord, or aoriie oilier oBeDwre or
mortal weapon, wilhoul the leant cokiur or
cauM of proTOcation then giren Ly bim, iurada
tlie aaid ileceatt earl, who Lad no weipon )h hta
hand, and did basely and felonioutly munlCT
and kill liim, by giving him a wound Iherewillt
in the belly, some inches abote the naTel,
which, by following (he ihrutl with a second
push, weDt thruaghiheintestkiiesaDd iheback,
a little tower than where the said weapon ^-
tered the belly : nf which wound, alter gnat
pain, on Saturday immalialelv thereafter, or ■■
some abort space Ihereafter, he died ; aod so
was cruelly and barbarously murdered by yon.
At least, althe time anil place aboie-meniioDcrf,
with a drawD iword, or some other mortal
weapon, without any juat canie or pro*ocalion,
yougaTetbeaaiildpceaslCharleaearlofBlral^
more a wound in the belly, which reached
through the iniestiDea anil lack, wherelhrougb
be aoon at)er tell down, and died at tlia tiiM
loretaid. At least, at the time arid place abot*
described, the naid Charlea earl uf Sirothmora
was wi(h a drawn iwonl, or aoine other ileailiv
weapon, feloniouKly and barbarnwdy woundaJ,
and of tbe said weuud died within a few daya
ihercafier ; anil yiiii were art mid part io hia
murder. Ity all which, it is eviiltnt, that vou
are guilty, arl ami part, uf the crimes of wiirul
und premeditate murder and humicide, or ono
nr other of them, at the time and place, and in
the manner abore set foilh. And which fucta,
or part tlierenf, nr your beiflg art anil part of
anv of the said rrimeR, being Ibunil proven by
ihe vcrdirKif.inaiiaixc, in iireiciii-c of llie lords
jiistice fffMifral. juhlice clerk, and commit-
aiooera orjuitii-inrv, you iiui;hl lo be exempla-
rily punisiieil wiih the pains of law, to iho
terror of others to commit the like in lime coiu-

Puriiiert. — Mr. Duncan Fnrhea, his majes*
ly'it advocate; Mr, Churles Afeskine, his ma-
jesty's siiliciti'r; Mr. Atex. Hay, advocate;
Mr. Patrick (iratil, advocate; Mr. Georgv
OKilvy. ailviH'H e ; Itlr. .Ii.hn Ut;ilvie, advo-
c:i(e ; Mr. Hii^li l>alr_\mple, adviTute,

PrivuroluFs in Dffenet.—yU. ttobert Dutf
JlIs, sdvucate; Mr. .lumps Ft<rt;usson, senior,
ailviicate; Mr. John Forbes, udvncale; Mr.
n'illiam (iianl, admcule ; Mr, Janiea Pater-
son, advocate ; Mr. (Jeorge Sinolk't, advocate,

Tbe libel lM>iiig Ofii-nly read in court, and de-
bate vini race, in presence of thp lords, ihry
orduioed biiih parliea lo giv« in their iiilormn-
I tionii tn the clerk of court, iu order to be re-
corded ; tbe pursuers to give in thein agaioil

»J 1 GEORGE II.

Sklunlay next ; ■nd ihe panDel'i procuralon
lo tfive in bib Kgainit Friday therealW: uid
continued the caoie till Iho lit dij of Aiignit
next to cume, at oiDe o'clock ronniin^c; and
onttined ivitneasefl and asaiBera to attend alihtt
time, each penoa, under the paiu of latr ; and
ordained the pannel to be carried back ta pri-
«m ; and granted aecnnd diligence for tbe |iur-
■uets against the witottu*. >

iMrORMATION for So**KN« C0UDt<« of ^RATR-

HORB, and Mr. James Lton, Brotlier-
tferman to the deceawd Charle* Earl of
Slrathmore, and bia Majeily't Advocate
(or Ilia lliglinen*Blntere«l,aEaiDitJkTnes
Caraegie of FlabaTen, PanD^.

The said James Caroegie is indicted and ae-
•iiseil as gnillv, art and part of wilful and pre-
neklilatc murder; at least of murder and homi-
cide : in so far aa, upon the 9lh of May laat,
npon llie atreela nf Furfar, with a drawn aword,
Ik wounded the deceased CharlrK earlof filratfa-
mnrc in the belly, some mcbesBboTelhetiavel ;
nhioh tvouLiil went Ihruug'h tbc iotesiines and
the back, a little lower than where the «aid
ffcapou entered the belly; of which wound he
died soon after,

Tbe indictment, in the (int plare, charge
the fact a* proceeding from a causeless ill-will
and resentment the panncl bad cooceired
against tlie defunct, who, at the time the wound
was given, bad done nothing that could be pre-
lendMl Bs a colour or cause of provocation; and
a circumstance ia noticed, from which it may
be inferred, that there was deadly hatred aorf
malice ; namely, that after one push there waa
a second, whereby the wound went quite
through his body.

There is e second branch of the indictment,
in which the circumstances of premeditate ma-
lice and forethought felony, needed not to be li-
belled ; and he is chargeo only with murder or
koniicide, aa seiiarately relevant. And, lastly,
art and nart is charged upon bitn.

At calling befitre the lorda of Justiciary,
a^inst the first t»«Dck of ihe iodictmsnt, it
was eicepted, ■< That the indictment was ino
genera), particular circnmslancea not being ex-
pressed from which the causeless ill-Mill or ro-
■eiittneot meutinned, and forethought and pre-
meditate malice could be inlerrcJ, whereby the
panoel was deprived of the heueGt due lo all

(innels, wheu tried for their Hie, lo exculpate
ims«If, by shewing, that if at any time, prior
Id the lime [iientiuoed in the indictment, there

reconciliatinn and entire friendship :" AuJ it
was said, " That general libels ought not to be
sustained."

Ta this it was answered. That a prctiuns
grudge is charged, and that the deceast was in-
*adea without the least ctdour or cause of \in-
TOcatiou ; which is the stroni^cat evidence of
foictbougbt, npecially when joiuni witb tbi*
Mhir putinilar, that thw first tbnut wu fol-

Triat ofjamet Carnegie,

lowed with a second push, which was &. i
uf inveterate and relentless malice ; and It
was sufficient to chargo a previous qnari>
general, which would be made appear Ity

Siroof. Nor will it be found, that in Ubtr
iirethanght felony, it is usual ornecessDr,
libel all tbe circurostances from which
forethought may be presumed, especially w
the ipeciti facti is chart'ed iu tliat mauKr^
affiirds the presumption of farethought, leM
forth, that the wound was given withonl
least colour or cause of provocalinn on tbe p
of the defunct at tliut time. Neither can ic
thought unfair with regard to the pannel, 9
if he had eny relevant ground of exculpalis
would hare access to prove frienilship witb t
defunct, to take off any charge of preeeda
quarrels, whereof lie could nut be ignora
And still there must be less ground of cot
plaint, where no good reason of exculpatioa
offered, whereby the panne] can be allowed
adduce proof, which it is believed is, witin
coniraihclion, the case upon Ilia first bnncfc
the libel.

As tu tbe two last branches of the indil
ment, it was allqied, <' That several circu
stances attending tbe fact complained of m
concealed, which, when opened, afforded ll
pannel plain and obrious defenoea ; and tba
fore it was infortnad. That tbe pannel, a ps
sun disposed to peace, and in entire friendsk
with the defunct, chanced to be in compai
with him about the time chaived in the indii
ment, with one John Lyon of Bridgelon, m
others: that firtdgeton gave him t^e faigfai

the pannel was in hazard of perishing, bail
extremely drunk : that getting up, heated wi
liquor, and so extremely provoked, he drew I
iword, and pursued Brirlgeton, and that tbe i
funct thrusting himself between them, casual
received tbe thrust aimed at another."

From tbeao circumstances, it was pled I
the pannel, "Thatif he did kill the defunct,
was a mere misadventure, raiher a misfortu
as [than] a fault, and in no event could suhje
liim to the jirno ordtnuria ; fiirthat, Imo. .
these circumstances had he killed the said Jol
Lyon of Bridgeton, thepain of death could n
"iBve been inflicted either by the law of Go
he common law, nor by the municipal law
Chiskingdum, neither by the laws of other we
^overnM realms ; pariicularly by tlie laws
our neighbouring nation, in regard the fact w
done of sudilenty, by a peivoa in diink, ai
highly provoked."

And, Imo. As to 'he lavr. of God, chap, x]

. 13, of Exodus was appealed lo, where it

lid, " that if a man lief nt in wait, there w

I he a place appointed whiihrr hesbould fly

hich seemed lo require forethought, Ai

IC xxxvth chap, ot Numbers, ver. as, wbe

was said, " That if any one thrust anoth

suddenly without enraiiy, the congtegstk

— - to judge between tiio slayer and the n

rerofhlwd;" fron whick itwtMJdiea

fir iktMwriiT qfihe Earl nf Strathmori*

A. D. 179&

dHgbterof HuMcntj was not punishable

lAii it was aniwerady that in the law of
Aegfoeral rale waa, •' Wboeo sheddeth
hmti, hj man aball his blood be shed :
iAe hand of man, and at the hand of
^Mi*! brother, and at the hand of every
avilbe life of man to be required/* Geo.
fik That by the law of Muaen, death of
■kf was plainly capital ; nor had the
itft the benefit of the city of refuge,

etbe slaughter was mere misfortune,
, which was plainly the meaning of
■riiiB Exodus, ** If a man lie not in wait,
H Mirer him into his hand ;'* which
iHivith any propriety be understood of
fhto committed, where the intention and
p'aHecedit ictum licet non congrcssum.'
rflkii matter b clear] v exphiined in the
^ of Numbers, where he who smites
■ Bitmment of iron, is called a mur-
I lad where it is said, <* That he who
ivitb a throwiufi^ stooe, or with a hand
Btf wood, wherewith a person may die,
idK, the marderer is surely to be put to
' And then the law proceeds plainly to
f OSes, where death ensues from strokes
■H of a weapon not deadly, and there
MS indeed hatred and enmity ; but if it
mddeoly and witliout enmity, or (which
■kible) in the OSd Terse, «' With any
■herewith a man may die, seeing^ him
ri was not his enemy, nor sought his
; then the congregation was to judge be-
ie slayer and the revenger of blood."
ahich it is plain, that slaughter upon
ij, even without forethought or previous
't VIS capital by the law of Moses, if
sod was given with a lethal [deadly]
I, except when it was tlone ny mere
Lu by throwing a stone whereby a man
k,the person who threw it seeing him
iriso at no time was his enemy, or sought
m. And this is the case mentioned,
iz, rer. 4, Deut. where it is said, ** Who-
iflu his neighbour ignorantly, whom
sdnnt in time past" (which is limited by
aple immcniiately sulijoined to homicide
asiial), <* shall fly into one of these
uid lire." Now, in the present ca^e, the
of tlie weapon and of the wound are
d clearly exclude founding with any
upon the disposition of the law of Moses,
the <]uestioii were of the pannel's
i( the benefit of the ett v of refuge. But
is it an arg^ument of nny force to plead,
iere the benefit of tlie city of refuge
allied, that by the Jaw ot nature the
WM not capital ; for the revenger of
ould never hav» been tolerated to kill
; the city of refusre, where innocent
ras spilt, whereby the laud must have
lluted, and the stil>j(.>cts were permitted
, so notorioiiKly to break in upon the es*
d Jaws of nature ; and therefore,
it is an argument of unavoidable tbrce,
itraver, by the law of Moses, capital

Iiunishments are allowed, such punishments ara
awfnl: But the argument is not of equal
strength, that where the powent of the law wer^
suspended by the jui utjfii established by posi-
tive precept, that therefore, in countries whera
there is nu such privilege, either by tlie laws of
God, or the laws of the land, that there tha
pnniahment is not to be capital, where the jug
asyii could have been claimed.

2do. It was contended, '* That by the com»
mon law, not only dolus bnt propontum wai
necessary ; and that slaughter committed isi-
petu et rixd were not to be punished capitally.*'
And to this purpose, the authority of the lean-
ed Voet, was cited, who seems to say. That
in rud, if the person cannot be discovered who
gave the deadly wouud, the ordinary punish-
ment ahonid not take place.

But when this matter it considered, it ia
plain there arises no good ar]gument for the
pannel from the common law: For tbongb
tbeva is a difference to be made' between pra»
potiimm and machinaiio prameditata, and aud-
den passion and beat of drink, determinmg tht
will to commit the crime ; yet as laws were
made and became necessary, chiefly from the
depraved passions of mankind, they cannot af-
fonl a sufficient excuse against the ordinary
punishment of an atrocious crime ; and there
IS dolui^ when a crime is even committed of a
sudden, although there be no forethought: fete
it is commonly said, that op|M>rtunity makes
the thief, and theft is committed impetu^ never-
theless not without dole. Nor is it necessary
to prove or libel a forethought in the commis-
sion of the crime. In the same manner pas*
sion or provocation may unfortunately deter-
mine the will to the commission of a horrid
crime ; but it would be of dangerous conse-
quence to allow of bloodshed under colour of
passions which men ought to subdue, or of
drunkenness which they ought to avoid, or of
a sudden vicious turn or mind ; and therefore^
in the Roman law, whoever committed
slaughter dolo malo, whether deliberately and
upon forethought, or of suddenty, was to be
punished ex lege Cornelia de Sicariis . And to
shew that it was sufficient, that the design
should only precede the act from which death
followed, and not the meeting of the persons,
as the acts of the mind are only to be known by
external circumstances ; the kind of weapon,
in the same manner as in the law of Moses, was
sufficient to found a presumption of sui!li pro-
potiium, as, joined with the act of killing,
brought the manslayer under the pcena legis
Cornelia!: So in the 1. 1, § 3, ff. ad le|vem
Corneliam de Sic. it is said, ** Si giadium
strinxerit, et in eo percusscrit, induhitat^ occi-
dendi animo id eum admisisse ;'* and if prior
forethought had been necessary, the kind of
wea|K)n could not possibly have foundinl a suf-
ficient presumption : But as it manifestly made
appear the intention io kill, whether thai intiMi-
tion had its birth from passion or drink, it «%as
voluntary slaughter, done dcditd vperd^ Hud
tiierefora to be pnniiihed capitally. And the

TO]

9 QEOKG^E II.

IVial ^Jamtt Carni^t

[

fUiMge cited from the learned Voet, rather I
lNHi6nii« this doctrine, That if in rixd, which
nuaC auppoaeauddenty, the peraon who inflicts
•d the mortal woand wan diaoovered, he waa to
be aubjected to the ordinary paniahment And
the aame author, § 9. of that title, obaerres,
That though aucb aa commit alaugbtcr, calore
irmcundUf may be aaid impelu deUnquere;
yet there, " neque judicium, neqne aaaenaua
•oimi, Deque foluntaa deeat ;" and saya, That
A peraon profoked bv verbal injuries, how
great eoever, waa not nee from the p^ena ordi"
iiaria. And the truth ia, if paaaion and pro?o-
eation were aufficient to excuse alanghler, K
were in ?ain to lav down the rulea ao anxioualy
conceited in the lawa conceminfr the <* mode-
ramen inculpate tutel»," where the alayer
muat proTe that he waa " conatitutoa in peri*
culo Tite.*' And had the caae atood otherwise
in the Roman law, it could never hare been
doubted, when jealousy waa the rage of a man,
and adultery the higheat provocation a-^inst a
husband, and a real iniury ; the qneatioo could
■ever have been stated to be determined by the
emperor, aa in L 38, ff. § 8, ad le|pm Juliam de
adult. Whether a husband, ** impetu tractus
doioiia, uxorem in adulterio depreiienaam in-
lerfecerit," was liable to the poena legia Cor-
Beli« de Sicariis P And who, by that decision,
upon the peculiar circumataucea of the case
wtta ezeemed [ezempteil], and never ihelesa
made auhjenl, si loci kumilii, of being condemn-
ed ad opu9 perpetuum, and if honestior was to
be condemned rtlegari in iusulam. But as the
case muat be determined uiion the law of Scot-
land, il ia unnecessary to dwell too long upon
the argnmenta drawn from the Roman law.

3tio, It was contended for the pannel, " That
by the law of Scotland, slaughter and monler
were of old different apeciea of crimea, and
only murder committed upon forethought fe-
lony was properly computed murder, and
punished as such ; btit tliat alaugbter com*
mitted upon suddenty, or chaud tnelle, and in
rijrA^ was deemed only homicidium culposum^
and not punishable by death." And to support
tliia position, several acts of parliament were
appealed to, by which it was statuted, that
murder was to be capitally punished ; kmt chaud
mellff or slaughter comtxiitled upon suddenty,
waa to be punishable according to the old
laws : and that in this case, if the pannel bad
even killed Bridgeton, at whom he aimed the
thrust, in the circumstances above set forth, it
waa not murder u|Km forethought, but upon
iuddenty and high provocation.

To this it was answered, That thia doctrine,
so directly contrary to the received opinion,
had little countenance from tite old lawa and
acts of parliament, less from the constant
practice before the act of parliament king
Charlea 2, in the year iG61, and stood in plain
contradiction to tliis last law, and the constant
practice and repeated decisions of the Court of
Justkxary from that time down to tbia day.

By the old kw, particularly chap. 3, of the
ifttitalatea of kiag Robert 1, intitUed, Men

condemned to the Death ehonid not be i
deemed, ** It ia statoted and ordained, |fif a
man, in any time Coming oc bygane, is co
vict or attainted of alaugbter, reif, or any otli
crime touching life and limb, common joati
shall be done upon him, without any n
some." Here slaughter in general is mc
tinned, and justice waa^o lie done upon t
person convict of it, and the punishment
Uie title was plainly dcAth : tof that, at coi
mon law, alaugbter in ti^eneral waa capH
The next Mtragraph does indeed save the kiuj
power (which muat be the power of pardonim
and the liberties granteil by the icing to I
kirk and kirkmen, and other lorda; whi
muat be underatood of special immunities
the caae of manalaughter: for no privilege «
to protect againat murder upon foretbougl]
and the exception confirms the rule.

By chap. 43, of the atatutea of king K
bert 3, it is atatuted, " That na man uae ei
destruction, hershipa, burning, reif, alaugfat
in time to come, under the pain of tiuel
life and gooda :" whereby the pain of del
ia clearly made the puniahment of alaugbi
in general. And in toe im mediate subseqoi
chapter, the aheriff was to take diligent inqi
aition of destroyers of tlie country, orencn
had deatroyed the king's lieges with herahij
slaughter, &c. and was to take bail from tbo
if arrested, to compear at the next justii
ayr ; and if bail waa not given, the sheriff a
to put him to the knowledge of an aasiz
'* And gif he be ta^nt with the assize for <
an trespassour," it is said, " He shall be ofl
demtieu to dciath :" which seems only
relate to manslaughter, and not to mort
upon forethought telony, which was one
the pleas of the crown, to be tried ouly beA
the Icing's justiciar ; as i* evident from dH
11, kiog Malcolm S's laws, and chap. 1
and 15, whereas slaughter might be tried
the aheriff, where there was a certain aocus
as appeara from book 1, of the Uegiam Al
jestatem, chap. 1, § 7, 8, 9.

There are sundry others of the old statut
that seem plainly to pre- suppose that alaog
ter was capital, and particularly these of Ale
ander 2, chap. S, § 3, 4, 5, 6. And so Ske
in his Treatise of Crimes, tit. 2, chap. 6, sa]
'* Tliat alaugbter in rixUf or chaud meiie^'
generally punished by «leath, and confucott
of the moveable ;;:ooda pertaining to the tn
pasHOur; but with this dilforfcuce, that t
girth or sanctuary wan no refuge to him w
commits slaughter by torethoiight felony, I
he should be delivered to the judge ordmai
to undcrly the law:" which plainly appei
from act 23, pari. 4, Jamca 5, whereby nil
ten of girth are ordained to deliver up su
peraDus as are guilty of murder upon foi
thought felony. An(l it is in vain to foa
upon Law 90, |Nirl. 6, James 1, which m
in the end, ** Gif it be forethought felony,
shall die therefore;" because the act relatei
ail manslayers; and though that partiea'
and moii atrocioai ipeciei be mentmied,

t/J Jar the Murder qfihe Earl of Straihmore. . A.D. 1728.

Ar winch the maiJeier shookl die, yet
■ffonmC will not hold, that therefore no
rad of sUoghter was capital : for it is
aaiii iu the geoeral, that if the slayer is
with red hanil, the law shall be done
pitfaia that son ;. which cannot be
of a crime not capital. And sir
Maefceoane, iu his obserr Ations upon
lysg **Tbis may seem to imply, that
4k mi for murder committed wifchoat
felony ; but this holds not in our
BMirder, though committed without
-^hft fehiny, is punishable by death,
eem/L k vas either casual, or in self-defence."
Tie act 51, pari. 3, James 1, was im-
pnpsrij fiwiided on by the pannel's procura-
IMS ; Mr that act does no more than extend
Ibt Mbesee between forethought felony and
dmad wteUe to all transgreisions as well as
imklar; as sir George Mackenzie obserres
^pi that law, where he says, That cJiaud
■kar hamieidiwn in rixd commissum, is ca-
lU if oar present law.
^ crimioals who resorted to, and took
in charchca, had protection, thou|[h
tnmta were capital, is eitremely plam
chap. 6, of the statutes of K. Alez-
f, where it b said, ** That thie?es and
who fly to haly kirk, if moved with re-
he confess that he has heavily
I for the love of God is come to the
of God for safety of himself, he shall
nee in this manner, tfiat he shall not
fife Bor limb, but restore what he had
ad satisfy the king, and swear upon
Evangel, that for thereafter, they shall
* BMumit reif nor thef\ ; but if he declared
" ianocent, he was to be tryed." And
ii 4i Imi paragraph of that chap, it is said,
**U9nn» noanslayers, &c. if tbey fly, in
nascr Aresaid, to the kirk, the law afore-
mHikaHhe kept and observed to them."

Awe seems to have been this other dlflfer-
■ee MO, by the books of the old law between
■arte' upon forethought and slaughter, that
iW Inal of murder was summar, whereas
■saiiaaghter could not be tried till af\er forty
^yi, as appeals by the statutes of llobert 2,
fcwa cbap. 3, to chap. 9.

After the Reformaiioo, when i\ie jus aiyUy
Watffiy given tu churches, dro|ipeil, the dis-
liacfaoB between murder and inauslauf^htcr
«is looked on with less attention, and libels
•cieoommonly framed indifferently, for mur>
^, aod slaughter in general, without any
■tatioo of furethought felony ; nor was it
ecr objected, that malice or premetlitate ile-
^ was requisite to make the crime capital :
M erimiojiu were punished to death, where
the proof there was not a colour or pre-
of forethought, or any premeditate de-
as will appear from looking into the
. — ofadjournai. And many instances nii^ht
wgifco, particularly in the case of Jean
famt ajFaiDst William Eraser, the last of
My, ifrii ; where the pannel was condemned
^ as rstrajudicial confession, admiiiicu-
«UL XVII.

lated with other circumstances ; in which he
set forth the fact, that the tiefunct and be had
some little quarrel about a staff; and hearinir
that lie had murdered hia brotiier, he came
into a house where the defunct was ; and that
either the defunct, or some other tliat was by,
took the pannel by the arm, to hold hiiu:
having freed himself, he aimed a stroke with
a whinger at the defunct's arm ; but missing
it, he stmck the defunct about the pap ; and
upon this, proof, he was found guilty, and
executed.

In the case of Bruce agrainst Marshall, the
Srd April, 1664, slaughter was libelled, and
he was condemned upon his own judicial
confession : from which it appears, that he
was so far from having any forethought, that
he suffered not only the greatest provocation
in words, but was even oeat with hands and
feet by the defunct while he was on the
ground; but at last getting up, and (as the
confession bears) being overcome with passion,
he drew a knife, and struck at him in two
several places of his body, whereby be died.
And upon this confession, where there was
tuddenty, provocation and passion, he was
brought in as guilty, and condemned to be be-
headed.

The law remaining somewhat ancertain con-
cerning casual homicide, and there being no
longer any beneflt of girth as formerly ; ia
the year 1649, an act was passed during the
usurpation, for removing all question and doubt
that might thereaAer arise in criminal pursuits
for slaughter, onlainini^, that the cases of ho-
micide aAer-following, viz. casual homicide,
homicide in lawful defence, and homicide com-
mitted upon thieves and robbers, should not
in time coming be punished by death, not-
withstanding any laws or acts of parliament,
or any practick made heretolbr*?, or observed in
punishing of slaughter. And this passi'd int«>
a law after the Jtestoration in the ^car 16(31 ;
and at the same time, all decisions given con-
form to this act, since the 4th of February,
1649 years, are dcrlared to l>e sufRcieut to
secure all parties interested, as if the act had
been of that date ; which was necessary, be-
cause the acts tiurin^f the usur|>ation had been
rescinded: and tiiis law has ever been looked
upon as the standard. And the practice of
the Court of Jusiiciury, since that time, clearly
deuionstrates, that slaughter of suddenty, and
slaughter upon provocation, which could not
be brought under one or other of the particu-
lars there mentioned, have been taken to be
capital.

The procurators for the pannel here <d)serv-
ed, ** That though in the cases there mention-
ed, the law oi-dained slaughter not to he capital,
yet it neither SHid, nor supposed, that the for-
mer law, whereby paunels were entitled to
plead afi;ainsi a capital punishment, was there-
by abrogated, but only statuted in the caves
there mentioned."

Tu this it was answered, that the iiarrativs
of the statute was for removing ot all ^utfttioa

88]

1 6EOR6E IL

Trial of Jamei Canui^

[81

•Bd ionU thit may Mmt thereaAor io eriumial

riuits fortlaughier, nd oooKqoently cumol
nppottd to liATe left doabCfol cases, ihat
the paimel'f proeonton Hiiist adnil were
not so dear as easaal bomieide, and homicide
ia defeace: nay, the law seems to suppose
prdty plain ly, that all slaoghter by the laws
and actfc of parliameDt, or practicks, was capi-
tal, not declaring what was law from any other
period than the year 1640, but eiiactiog' the
same with a nan obftmnttf and judging it neces- .
sary to confirm the decisions that had past,
conform to that act dnriog the usurpation,
which would bare been rain, if it bad not
been at least doubtful, whether casual homicide,
homicide in lawful defence, and slander com-
miitod upon thieves and robbers, did not sub-
ject those guilty to the pain of death : and if
those degrees of homicide were so much as
doubtliil, it is not possible to conceire that
ekaud melUf or slaughter committed, dedM
oper£t though without IbrKhought, was, by the
law of Scotland, not capiul. Or if it should
be supposed to hare been doubtful, whether
tliese last dej^rMS of homicide were capital :
that the legutlature, upon a narrative, that all
question and doubt that might arise hereafter
in criminal pursuits for slaughter, should be re-
moved, would have enacted in the clearer cases,
with a fion obiiante, and left the more difficult
In the dark, as surely the greatest advocates
lor slaug^liter on snddenty must admit, that, at
least, it is more culpable than either homicide
Bicrely casual, or homicide in lawful defence.

The argument drawn from the rubrick of the
act, which mentions degrees of casual homicide
only, can conclude no more, than that the title
Is imperfect ; and it would be resting too much
upon an argumeot d rubro, to make it defeat
what is said in the law, that all questions con-
eeminfi^ slaugliter were thereby to be removed,
and which opposes casual homicide to homi-
cide in lawful defence ; and conseouently can-
not under the u'ords, '* casual homicide," com-
nrtlieiid all slaughter not upon forethought fe-
lony. And sir George Mackenzie in his ohser-
yations upon the act takes notice, that the title
is very ridiculous, and consequently no argu-
ment can be drawn from it.

One thing it may not be improper to notice,
9s, that if killing by forethouglit felony was the
only species of slaughter capital, the crown
was disabled from pardoning any capital
slaughter w hats«f mover, which does not appear
to have been tlie o|iinioii of our lawyers.

As to the drcisious subsequent lo this law,
they will he found entirely agreeable to tlie
doctrine now laid down ; sir George Mackenzie
observes, that though many lawyvrv are jiosi-
tive, that though homicidium in rira, even
where the author of the plea {» known, may
by ihii rigor of law hv punishcil by death, yet
that no contitr}' ii^c^ litis rii^or ; yet he remem-
brrcd, that in William [ioiigluss*s case, this
was urged, and albeit it was not proven that
he was the killer, Vf^ the assize found him
4(oiIty,.aiid ht thcc«i](iuD died. This is a case

nsore fiivooraUe, than where the peraon thil
gave the mortal woond is known, tfaMHi^h gtwm
suddenly, and even upon provocation; wai
therefore shews what our law is, and with

little reason the procuratora for the nan»d
maintain their argnment upon the law of Seat*
land.

In the case, his majesty's advocate agwMl
Nioulsoo, the 24tb June, 1673, murder «ad
slaughter, without forethought, were cbaifd
upon Nicoisoo, the pannel $ and hia pioo—
tors pleaded the benefit of the act of parliaml
anent casual homicide, in the aef eiml
thereof, he being in a condition that he
not able to remmiber. To this it was
ed, that the defence was not relevant, in
the homicide could not be said to be
such as Uie case of throwing of stones mm
dikes, and accidentally killing a paasesfvi
and the pannel having afterwards propooed €
defence, that being in use to carry a gwB ss'ii
fowler, and calling accidentally for meat ts li|
dogs at a mill, the defunct fell upon himy sal
offered to secure him as a French soldier, sslt
to be one ; in the stm^e, his gun being km
bend, went off, and killed the defnnct: ~~^
the libel and defence were found relevant,
it appeared upon the proof, that Nicolsea
drunk, and that there was no previous qiisnrii
but taking exce|»tion at somewhat the drfsMl
said, he shot him with his gun ; and bv ihi
verdict of the assise, '< he was fonml gnfty d
the slaughter committed u|M>n the defqncl/j
and sentenced to have his bead struck off.lv
the Grass-market ; which shows that nsilh^
drunkenness nor suildenty is a relevant dffiMJ
against the jMtaa ordinana in slaughter.

And, in the case of Murray contra GiM
10th June, 1678,- Uie lords '' found the IM
relevant, and that there was no necessity of sq
distinct probation for pro? ing precogitate atij
lice;" which clearly shows that slaughM
other than upon forethouglit, was capital. Am
to show that provocation and passion ars. ail
received as defences against the ptma 9rdmm
ria, a multitude of decisHHis might be bremi^
particularly in the case of Aird, who was m
dieted in 1693, for the slaughter of AgWi
Bayne, having given her some strokes oo ds
side and belly with his foot, by which sb
fell into fainting-fits, and immediately disd
The defence was, ** great provocatkm and e»
sual homicide :*' provocation, in as far as shi
threw a chamber pot in his face ; and whea hi
gave her hard words, she and her neighboM
fell upon him, and beat him ; upon which %
gave her the strokes above mentioned. And i
that trial it was argued, there was no snisil
occidendi^ no previous malice, no mortal wea
pon; and the texts from Scripture urged I
ticfencc of the present pannel, and the arjga
ineuts from the civil law, and from onr m\
acts of parliament, were urged : neyerthcb
Uie lords <* found the liliel relevant, rsfil
the defences ;" and, upon the proof, he i
sentenced to die.

In the case of Williaa Ganaichael ie 108|

•] Jar the Mturierofthe Bart ofStratltmore. A. D. 17S8.

WM fonnded mi to excuse a p€mm

and Ibffethoagbt wst neither libelled,

I ; and the loide found the libel rele-

L ■poB the proat'y he was sentenced to

1095, Qeoige Cnnring^, writer in

raa indicted for the crime of moro

lUffhtcrof Patrick Falconer; the

' oBeted for the panael, upon the

tba old law, between forethou|rht

rl/e, were offered; nevertheless the

Wbh foond relevant, and tlie assise re-

lariavcrdietgniltyof manriaughter; upon

sAiih ha was coodemncd to die.

MthacBseaf Burnet of Carlops, the S2d

htmru 17 llf thosgh adefonce was sustaiued,

l<*siftsl withowl foretlioni^t was found re-

ImsI: md in thai of Hainiltoa of Green, the

Sib Jane, 1716, the pannel offsred to prove,

An ha was aeddeBtally at the house of Tho-

. of whose murder he is accus^i, at

iihellcd, with some of his acquaint-

p .ad had no deadly weapon aloo||f with

tof that hm became inebriated to a great de-

pBbSBd havii^ left the house, and returned to

itti the slip or cover of the sheath of a sword^

ii drfanct gave him most indecent, injurious

■i HBrrihuH laugnage, and persisting in it,

poshed, or struck at him with his

having the scabbard thereon, that he

• to beKeve had a crampct upon it:

_ nil] more and more provoked by re-

IM^s^iioaa words, to protect himself from

Mhv iiwalfiice he had reaaun to look for, the

pssi tfiU raosaiiiiii^ on horseback, the de-

mm iwhad bimseU upon the sword. And

tkii orcHBistantiate fact was offered to be

f. Nevertheless the libel was fouod rc-

IwM^aaA the pannePs baill dcfencus re|>clled,

■^ spOB ibe prcMif, was sentenced to have his

^ud swwcd from his body : and was accord-

t'Uaded.
iheeaae of Thoouis Rots and Jaifrey Uo-
kM% the SOth July, 1716, it was pled tor the
isneli, that being recruits lately come from
Mi^mi to Scotland, and not knowing the way,
Ihey Mkcd the defunct tbe road to ^inbun^h,
^' ' ' to shew it, and one of tbe |Min-

Mb cxp(«talating with him, why he treated a

th(

so, that came to serve the king ? He
very disrespectful words with respect
lahis saajesiv ; and one of the pannels having
' bioi Tiflain for such opprobrious ezpres-
be caoie up to Ross, and with his fist
bin a blow on tbe face, and then pulled
down to the ^ond, and beat him with a
slidi, to the immioent danger of his life,
f. That he should never go alive out of bis
c and Roberts having come to his assist-
, aad lesooed him a little ; Ross, tbe pan*
fate the dcAioet a wound with a knif^,
Mof be died. Ross pleaded, there neither
■ar eoald be forethought fokm v, or nreme-
■ Baliee, agahist a^ person whom lie bad
V sees before: thai it was committed upon
ttiinty : thai be had the highest provoca-
t^bnh iMhal mi mIj Neveitiw)M> by tbe

interlocutor, Ross, the pannel, his giving the
wound was found relevant to infer the pain of
death. And tlie defence from provocation by
words, and receiving a blow on the face^ bch
ing pulled down to Uie ground, and beat with
a great sticJc to the danger of his life, jointW
sustained relevant to restrict the libel to an arbf*
trary punishment, was found to be elided by
the reply, that, at the time of giving tbe woand
te the defunct, the defunct's bands were behi
by Jafirey Roberts, the other pannel. From
whence 'tis evident, that slaughter upon sud«
denty, in rvrd or chaud melle^ and by a person,
who had received the greatest verbal and real
injuries, even beyond that of being thrown into
the kennel, of the nature that is set forth into
which the present pannel was tbroi^Hi is by that
interlocutor found homicidium doloium^ ami not
cuiposttm^ but capital.

And, in a very late trial, in the case of Da-
vidson, the soldier, slaughter n|Hin the greatest
soddenty was sustained, and he was upon the
proof executed.

And the judgment given in 1717, in tbe rase
of Brock and Lindsay, determines this point be-
yond all dttipute. These pannels were ac-
cused of the murder of one Anderson : and ai
the libel did expressly set forth a quarrel and a
struggling betwixt the two pannels and tlic de-
funct, which made it ilirectly an homicidium in
rix& ; 80 the pannels, at least Lindsay, offered
a pretty strong defence, namely, |liat the de-
funct, without any provocation, just led them,
and struck at Lindsay, and beat liini down to
the ground ; and it was while thi'y were on the
ground, the wound was given. And tbe de-
fence was pled for two several pur|iotics : First,
that the crime was not capital, because no fore-
thought felony. And, 3dly, to entitle them to
the act of indemnity, under which all homi-
cides were included, except willul murder, and
slaughter of forethought felony. And the in-
terlocutor uiion the relevancy v%asinthir words,
" Find the pannels, or either of them, at the
place and time libelled, their giviug Archibald
Anderson a cut or wound in the neck or throat,
or other mortal wound, with a knife or other
mortal weapon, where<if he, the defunct, soon
thereafter died ; or that the said pannels, both
or either of them, were art and part therein, re-
levant to infer the pains of death, and other
pains libelled : and re|)cl the liaill defences for
the ]>annel, excepting that defence pled u|>on
his majesty's graciouti act of indemnity ; nuent
which the said lords 8upersede«l to give their
judgment, till the conclusion of the probation,
and return of the verdict."

This then is an undoubted authority, that
homicide may, by the law of Scotland, infer the
|iain of death, though it be neither wilful mur-
der, pro|Hfrly so Hpeuking, nor furethonsrlit fe-
lony ; otherwiKe the Court could not have found
the crime relevant to inter the pains of death,
and at the same lime reserve the consideration,
whether tliero was any forethought felony, or
not.

Upon this interlocutor a proof wna adduce4e

87] 4 GEORGE II.

and a verdict returned, finding Lindsay, one of
the panneh, guilty ; and yet the Court havinj;
returned the cousidcratiun of the indemnity,
found him inlitled to the benctit of it : that is,
in other uronlv, they found the crime was nei-
Ibrr voluntary munler, nor slaughter of fore-
thought ielony. 80 that it m plain, had not the
indemnity intervened, Lindsay must have suf-
fered death for killing, though there was no
previous design of forethought.

And an iiitcrlocntor H)>on the relevancy,
nmch to the same purpose with the former one,
was also pronounced, the 31st of August, 1721,
in the case of Samuel Matthews, a soldier ;
where the libel was found relevant to infer the
pain of death, reserving the consideration of
another act of indemnity then pled for the
pannel.

It would be in vain, and lengthen a psper al-
ready too long, to run through all the decisions
which shew, that neither the drunkenness of
the nannel, nor provocation given him, nor the
suddenty upon which the fact was committed,
can afford a defence to the pannel, to exculpate
the slaughtei', or lessen the ordinary punish-
ment ; and therefore the pyrsoers shall leave
the first branch of the defence with the lords,
with this observation, that if it is really founded
in law, by looking into the books of adjournal,
one would think our law has hithertp been very
ill understood.

Sdo, It was ofi*ered, what indeed is alone ap-
plicable in the present case, " That if the pan-
nel intended only to wound or kill Bridgeton,
and by misadventure the deceast earlof fiSrath-
more was wounded, and of that wound died,
the pana ordinmria was not to be inflicted.'^

It was answered, that according to the rules
of the civil law, he who intending to kill one,
kills another, is nevertheless subject to the
p<na ordinaria ; so Julius Clams delivers his
opinion in his Receple Sententifs lib. 5. §
homiciilium, N. 6. where, aAer having taken
notice, that the contrary was indeed the opinion
of some, adds, ** 8ed cert^ ego si casus contin-
geret, illi facerem caput amputari." And the
learned Mathipus, lib. 48. lit. de Sicariis, § 12.
^ives the same opinion, observing that the act
18 consummate, there is animus or design of
killing, and death: tliatit would be aridiculoua
defence, that the pannel intended to steal the
goods of one man, but happened to steal those
of another ; or against adultery, that he in-
tended to defile one man*8 wife, and happened
to light upon that of another « and he thinks it
is as unrcusonable to hope for safety from this
defence, tlint the iiiraniug was to kill one, but
another receiveil the stroke and died.

Voet in his commentary agrees with them,
lib. 48, tit. K, ne. 2, where he says, that there
is ro diilemct;, " Sive vulnua in titium di-
rectum ab eo declinatum, Mievio in proximo
•tanti Jethale fuerit, sive dianiqne oocidatur qui
csedis impediendcB causa, aese medium inter
agressorcm et defendentem interposuerit : quia
pnevalet, quud principale est, nee error talis
t^Ui^iBt 96cide&di aBioioDi amcadea kge

Trial of James Camegief

Cornelia vindicandam." And for this ne
founds upon the I. 18, § 3, et § ull. ff. de
and 1. 5, s. 1, ff. de servo corrupto ; bn
the authorities of Farinacius, qua»t. 1 '
15G, et 157, as also, that of Fachinseus,
zovittsand fierlichius, and others. An
opinion obviates the defence, as put in it
favourable light, which however would
very delicate proof, that the defunct
himself between Bridgeton and the p
and receivcMi the stroke aimed at the othc

The learned Sande, lib. .5, ti^. 9, dc
which has this title, ** Qui alium pi
occidit, nihilominus ordinaria, leg. C
poBn& afficiendus," says, after agreeing
according to the Roman law, such error
not have excused the murder, ** Hoec sei
ubique usu obtinuit, et secundum eam, r
mortem condemnatus etdecapitatus est,'
November anno 1621; and there alleii^
authority of Gomesius, Emanuel, 801
Carolus Moliooeus, " Qui alios cumuli
his book ad consnetndines Parisienses.
sir George Mackenzie in his Criminal
Murder, i 9, says, after stating the qu
" Yet 1 think he should die, seeing the >
of killing a man, and not any particular r
murder ; and the killer intended to defac
Almighty 'a image, and to take from the
subject."

It is nothing to the purpose, that some
authors who write upon the Roman la
of a difi*erent opinion, in a case not detci
in words by the text, when the bulk 1
commentators are of the other side, th(
recent and of greatest authority ; and v
appears to be received as a rule by the p
of nations, that the ordinary punishment
be indicted. And it may not be impro
observe, that the cases where lawyers <
from the received opinion, are generally
tifiahle homicide, that is, where the bys
was killed, when the killer intended to e
his purpose in lawful defence, and not
micidoi culposo, which is the highest tlu
nel's case could possibly be pled upon pn
tion, according to any opinion delivered
strongest advocates for the question the
pleads.

That it is not always necessary, that \
tention should be directed towards the ro
done, in order to inflict the pain of death, n
evident from looking to the xxi. chap, of
ver. 22, and 83, where, " If a woman will
is hurt when men are striving, and m
follow ; life is to be given for life.'* A
kind of killing now in question was plain!
as, according to the law of Moses, woii
have intitled the slayer to the benefit •
city of refuge: For thouirh in the xir
of l>eut. ver. 4, " Whoso killeth his neif
ignorantly, whom he hated not in time
is said to be intitled to that privilege ; y
is limited immediately with an exam
manaUugbter merely caaual. -

The proenrators fiir the pannel in
«« That Ibia kind of kiUing wai inttrdy <

Jar the Murder of the Earl of Strathmore. A. D. 17^ [90

bfwd, and witboat the intentioD of the party :
1m m the caw of Musod, in the year 1674,
T CariopB, ami several otheni, where it
there was do intention to kill, the pu-
mitiieateii."
k«iaaanrered,That where, from the nature
I, and meant by which the wound
^ivtai taking all the circumstances to-
hoe was no eridence or presumption
fsancl intended death to any person
; and the propontum was neither
■or oonld be presomed, as in the case
jind in that of Burnet of Carlops,
having swords, only struck
, h was held as approaching towards
homictde. But tliat can never be
I, when the wound given as libelled
swas clearly mortal, and the instrument the
Mrt Icfbal [deadly]; and the decision of
Mipa, cfCD with that difference, stands single
kftabsaks of adjournal.

Ilvas fiirtber contended for the pannel,
^Hkh animuM oceidtndi^ and death follow*
1% tn admitted to be necessary, in order to
in the highest punishment ; so as from the
mentioned in ezculpation, it is
there was no intention against the de-
Aod it cannot be known whether the

ei dea^irn was to kill Bridgeton, since
not killed, or if the wound w<Mild have
liMBvtal, bad thesword reached him ; and
MH^BOCly the necessary reqnisites to const i-
ftiiaaBnler, were not to be found here."

h was answered, that the invasion with a

—Id weapon, with which the defunct was

yu,«as a sufficient proof in law that the iii-

ndw iolraded to kill, since death followed ;

■i ibtt there is no wounding by measure,

HtcRtuiy not to kill. The act implies chlus

isdndice, which, with death following, makes

■■ds; inihout any farther proof of an act of

lirai^jlikill ; and tbere would have been as

Uretideoce that the pannel intended to kill

Bri^noo, if be bad actually received the

■•viand died, because it was possible the

tsvri night have pierced farther than he in-

fesdid ; and if lie did not design to kill Bridge-

l"a. Mil killed the defunct, he must have been

6eper>6n against whom the mischief was di-

icned. As indeed it may be argued from the

fi^and drunkenness pled in excuse and de-

nee, it is possible that er rabie he intended to

Ul vhomerer he met with ; and if rage from

fiKino 3Ri| drink is alloweil to palliate iininier,

I iiioipouible any one can be fiafe. And tiiet^e

wif drciimstances, without which the defence

bs Bot a colour, roust, at the same time, give

that the |innners intrniion o\' {uir-

Bridgeton with a sword, was to kill and

him ; for be pleads them to excuse his

of the defunct, as sufficient provocations

feisdte him to it.

Tbc law of England was freqiirntly inen-

^fi by the procuraturs for the |tannel in the

llHdiag, as what won hi Justify Mic orgnnients

^a^^htfor tbem ; and |>aiticularly it was said,

^TkA lU kiiliog of a suddenly' by tliat law,

was only manslaughter, and not mnrder." But
the contrary will appear, by looking into
Hawkins's Pleas of tiie Crown, book 1, cliap.
31, of Murder, where he clearly distiaguishes
between deliberate murder, audi murder con-
mitted on a sodden : And in this last case, ma-
lice prepensed is, by the law of England, often
implied, as lord chief justice Keylinge* lays it
down, Begina v. Mawgridge, and justifies it
by the case of Hollo way, who espying a hoy
that came to cut wood, took him, and tied hiio
to an horse's tail with a cord, and then gave
the horse two blows, whereby he run away«
and broke the boy's shoulder, whereof he dieo;
which must have been sudden, and was ad-
judged murder. And p. 130, he supposes A to
have been provoked by B, and to have drawn
his sword, and made a pass at him, when B
had no weapon drawn, but missed him ; there-
upon B draws his sword, and passes at A, and
tliere being interchange of passes between them^
A kills B. I hold, says the author, this to lie
murder in A, for A's pass at B was maUdooa^
and what B aflerwards did was lawful. Here
is both suddenly and provocation, and yet, in
the opinion of that great lawyer, it would have
been held murder. And in the present qoestioOy
neither Bridgeton, nor the deceased, had any
weapon drawn.

And to shew, that according to the law of
England, the aiming at one, and hitting ano-
ther, does not make death follo\«ing man-
slaughter ; in the end of the next page he sets
down the Case of Dr. Williams, a Welsbmsui
who having a leek in his hat, upcm 8t. David's-
day, a certain person pointeil to a Jack-of-Lent
that hung up hard by, and said to him, *' LOok
upon your countryman!" At which Dr»
Williams being enraged, toftk a hammer that
lay u|K>n a stall hard by, and flung at him,
wliirh liitanotlier, and killed him : An<l though
being indicied upon the statute of stalibing, it
was resokeil he was not \«iiliin that statute,
because of the kind of weapon ; ** Yet," says
the author, *' if the indiiiiiient had been for
niunler, 1 do think that the Welshman ought to
have been convicted thereof. "f

And since the pannel's procurators insisted
so much upon the law of England, the pursuers
cannot but mention the authority oi one of
those lawyers, as to one of the cases they them-
selves stated in the debate ; Hawkinv's Picas of
the Crown, chap. 31, in fin.: The case is.
That a |)erson shooting; at tame fouls with
intent to steal them, arcideutally killa a man ;
that Jiithor .".ays, ^' TliHt it is agreed it would be
murder. i\\v\ not mnn«l:night**r."

* So in the Furinn Edition. But it appears
that chi<'f justice HoU is intended SceMaw-
griilpe's Case, p. 57, of tins Volume. »

f Ixinl Chancellor Bacon is in this opinion
of Hawkins expressly : See Vol. 4, (Edit.
1740) p. 41, on explaining this maxim offing-
lisli \\\v\ ** In criuiinalibus sufticit generalis
maliiia," &c. \%here he states cases very similar
to the case here argued. Farmer Editum^

91] 2 GEORGE IL

It is troe iodeed, that it would appear by the
law of Eogland, as laid down in tnese reports,
thai if there is pro?ocatioD, io some partica*
lar cases, sufficient to alleviate the act of kill-
ipg, it reduces it to a bare homicide. But
then DO pro? ocation from words is ever sus-
tained, nor CTen assaults, hst upon this ground,
that he who was affronted or asssaulted, might
reasonably apprehend, that he that treated him
in that manner might have some farther de-
sign upon him, which resolves the matter into
a kind of self-defipuce ; and in this the law of
England differs from tlie law of Scotland,
which requires, in order to lawful defence, and
killing under the notion of danger from the
assailant, ** ut quis sit constitotus in periculo
▼itse." But then there is no pretence of ap-
prehending dangerous consequences, when the
party killed, or intended to be killed, was flving,
and had no weapon, as in this case, and the
passion in such circumstandes resolves itself
simplv into revenge, which no law ever sos-
tained to alleviate or palliate murder ; for there
the malice prepensed is clear and evident.

But then, if it be conridered in the present
ease, that the party affronting or invading, is
not only set forth to have fled, and to have had
BO weapon in his hand, but that he escaped ;
what colour is there, upon these principles, to
alleviate the killing of a person interposing to
prevent the mischief, when there was no re^
aistance upon the part of any person wliatso-
ever, as in the case of a combat, and where
it was voluntary as to the person giving the
wound, in regard he could have stopped when
Bridgeton fl^, which cannot be said with re-
gard to. the Welshman who threw the hammer.

To (conclude this matter, it appears pretty}evi-
dent, the circumstances offered in exculpation
afford, by the law and practice of Scotland, no
relevant detence, suppose the person kilted had
been the provoker, much less m the case where
the person killed ^nerously interposed to pre-
vent the mischief, having given no colour or
cause of pn>vocation, having no weapon, and
where the person, against whom the invasion is
said to be meant, was without drawn sword,
and flving : the murder in these circumstances
must nave proceeded either from rage and re-
Tengc, which no law can ever favour, since
laws were made, and judges appointed, that
private persons should not attempt judging in
their own case, and to Inridle the unruly pas-
sions of men, or from set purpose and design
to kill tlie defunct, from former resentment
And what adds to the presumption of the last,
is the nature of the wound, quite through the
body, and that the sword went tlirough tlie
back lower than where it pierced the belly ;
which excludes all possibility of pleading, that
the pannel's stumbling might have pushed il
forward, because by the nature of the thing,
bad he stumbled after the sword bad pierced
the defunct's body, it must have raised the
foint of the sword, so that it eoald not bare
pieroed loaier in the hick than-in the belly.

VpoatiM fist kMch eC the libdi thepor

Trial of James Carnegie^

suers think it unnecessary to open the pu
cular circumstances from whicli the panne
causeless ill-will and resentment may appi
against the defunct ; that is matter of evidea
and upon which no interlocutor in the rm
vancy can pass, and must lie in tlie breasv
the assize; and against this relevancy no
ception, or colour of exception can bepretena
to lye. And as to the separate relevancy,
art and part, vi bat is offered to be proven, ■
the defunct thrust himself in a manner a.
the pannel's sword: as it is of too ddia
proof, and was repelled in the case of Hamta
of Green, it is believed the lords can hava
regard to it And as for the drunkenness
provocation, especially where the provoc^
IS said to have been given by a thinl partir
it were sustained, it must turn up wliati.::
been thought tlie foundations of the laap
Scotland, and stand in opposition to all
practice that can be discovered from the b^
of adjournal. And the allowing such defea
as might possibly have some colour in th»
of England, to be proven, would be of daa
reus consequence in the law of Scotland, w fa
the pursuers are tied up to a precise relevanc
so that the procedure in that part of I
island, in trials of this kind, unless the wbi
form of trial were adopted in our law, won
open a door for leaving murders unpunishe
The law of Scotland alone can be the rols i
this case ; though, at the same time, it is h
lieved, that the ipecUsfacti, as set forth by ik
|»annel, would be suliicient warrant for a va
diet of murder, even according the laws ai
practice of England. In respect whereof, b

CllA. Ar£skins.

Information for James Carnegie, of Finiiati
Pannel ; against Susanna, Countess i
Stratliniore, the Hon. Mr. James I^
Piirsuere, and his Majesty's Advocate,!
his llighness's interest

The said James Came<iie, of Finliata
stands indirted before your lordships of wiM
and premeditate murder andhonucide; ini
far as, having a causeless ill-will and resH
meut against the deceased Charles, earl i
Strathmore, he couceivc^d a deadly hatred si
malice against him ; and (on the day libelle
" did, with adrawn sword, without tlie leasts
lour or cause of provocation then given by Ui
invade the said deceased Earl, and diil oase
and feloniously murder and kill him, by i^vii
him a wound therewith in the belly, when
he soon aUer died. At least, at the time ai
place described, the said Charks, earl of Stva^
more, was with a dmwn sword, feloniously ai
barbarously wounded, and died of the sa
wound within a few davs thereafter ; and th
the pannel was art and part in this murder
And the Indictment concludes, ** By all wbii
it is evident, that you are guilty, art and pii
of tlie orimes of wilAil and premeditate mupi
and homicide, or ene or other of tliem» aV II
timeandplait|.aMlui tbttnuner abof* i
l«th.«

If/*

fjfiU Murder of the Eari ffSitaihmore. A. D. IVxh.

pMd «M ti— Mbt to ym ImMuf^ alwi j« ymmmiM, nnd iAi»i «M *.^f*

■*f Uibcf Joljciinvatfto^lctti tA woht mymi^ymft, m^tim i/# a^ IvHif tiM «*

be sppcand — rfer ibat um m • faukty, «r>l b<M • ^^mj^u ;iih^*mi m«4

of apinl »ivk 4mj tul^wi o^ Umm^ W if*** p««.# w*«fc •••

!■■ aifJilmaaB Bort be Um^mi^ wmmiot, wa^M t*^ mpMI^ h^^f4 •*• »»m»»#

•beU«Dd«f'Eoe. TWk ImS. «■ Wi^«*tiM MM «••* '•^'jr |(^«*

CMC fv 1H» flbUl^ »*^* iHli^aai %k 1^ (V^ !««

ial «r 1 aM ^ ma mi fii— «iia iir^« i-ji {:•««» :A*'nii «u^:ft «^f ^^^ ^«

*l^-. W tfMUilMiqf c-vaa fMA» l«^:« • *-^^/
1» tut in» M» » HB—<«« Mil 1*^ W^JUtt K-tf^oft «/ 4

•ff

t.t

»5-. «..S-.

• AM'rf

95]

2 GEORGE 11.

used ?ery great rudeness to the lady
in irhose houwtliey were ; particularly, when
ahe in cif ility offered him a glass of brandy,
he, seeing the nannel already overtaken with
drink, desired the lady to *j^ve it to him, her
lirother ; and upon her saying that her brother
did not seem to want it at that time, he grip-
ed lier by the arm so rudely, as to make her
complain, and swore, by God, her brother
aitlier should drink it, or she should drink it
herself; and persisted in this way of doing,
tall the lord Strathmore thought it proper to
break off the visit, and so went out of the
house.

*'That Finhaven and Bridgeton followed
the Earl ; and when they came to the street,
some words passed, and Bridgeton used the
ezpreision, * God damn him,* meaning the
pannel, and with that gripped him by the
breast, and pushed him into a dirty kennel two
feet deep, over head and ears, where, in the
condition he was, he might have been smother-
ed if a servant of the Earl's had not helped him
out, who at the same time expressed his indig-
nation at the action he had seen, by these
words addressed to Bridgeton, * Sir, though
* you be a gentleman, you are uncivil.'

" That Bridgeton, after having so flung the
paonel into the kennel, leaving him there,
walked forward ; at the same time turning
about, and folding his arms across his breast,
acomfully laughed at him in that condition.

*< That the paonel being helped out of the
kennel in manner foresaid, immediately drew
his sword, and, in a just passion, pursued
Bridgeton with a staggering pace: and Bridge-
ion ran towards the earl of Strathmore, whose
back was then to him, and endeavoured to pull
out his sword ; at which time the pannel
coming up with Bridgeton, made a push at
him ; in which instant the Earl turning hastily
about, pushed off Bridgeton, and threw him-
aelf in tne way of the sword, by which he re-
ceived the fatal wound."

These are the unlucky drcnmstances of the
fact, as the lalvyers for the pannel have been
instructed to plead : and from it, as so stated,
the defence iunsted upon for the pannel was,
that the act of killing is not murder, nor capi-
tal, where there is no malice nor forethought
•gainst the person killed, either prored to have
been conceived and retained at any time pre-
ceding the act of killing, or presumed from the
circumstances to have preceded the act imme-
diately before the committing of it : but that
in this case there is no antecedent malice spe-
cified or lybelled ; and therefore it must be
taken for granted, that there was none. And
as to presumed malice immediately preceding
the act, that the circumstances entirely exclude
that presumption ; first, because, as the fact is
laid, any blow or push that was intended, was
made at, and designed for Bridgeton, and not
against the earl of Strathmore ; and since the
imtium/acti is to be considered, as well as the
•rent, a push begun and intended against
BridfUBPi «ould otrar be tha fouBdatioa of a

Trial qfj^mes Camegle^

^ presumption of malice against the lord St
more, the person killed without wbicb
killing could not be capital, but in tfaia
was merely casual and accidental, it hi
bapnened by the Earl's imluddly tumilig
in the time of the pannel's very act of poa
against Bridgeton, wherd>y the Earl rec
the fatal wound. 3do, That the pannel
never be more criminal in having kiUed tfa
of Strathmore by a thrust directed at Brid|
than he would have been if be had killed Bi
ton himself; but that so it was, that if Im
killed Bridgeton, after the provocation m
manner above set forth, that it wouul
been construed ouly as casual or culpaU
midde, without forethought, because don

* incontinent!, et ex aubito impetu, et i

* justse iracnndise ;' yea, in some mea«
self-deleucc;, since the pannel having
thrown into the kennel, even to the dasai
being suffocated, he had reason after tl
expect the wont from Bridgeton, since ofl
tieman will throw another into a puddle, vt
not supposed to be ready to go further, i
cannot but expect the strongest retortion c
injury ; and that the pannel bad the more
son to think so, that Bridgeton immediately
took himself to the earl of Strath mere's ai
and endeavoured to pull it out, having M
his own, by reason that the known ferodi
his character and behaviour is such, that
country-gentlemen of bis acquaintance del
to keep company with him, if he wear
arms : in such case the pannel was to a
the worst, and so was in some measure ii
own defence, although he may have exoa
the * moderaroen inculpatoe tutels ;' wl
excess, in such circumstances, would no
punishable by death, but only by an arbiO
puniahmeiil.

And in support of this dcfeure the con
for the pannel shall now, in this informal
endeavour, though somewhat out of the c
of their pleading, to follow the inforoii
given in for the pursuers. And first, to i
your lordshifis, that killing in such circ
stances was not capital by the divine Ian
law of Moses. 2do, That it was not capita
the common law, which we in great mei
follow in matters of that kind. Stio, Th
was not capital by our own ancient law.
That our ancient law in that particular is
altered by the statute of Charles 2. 5to, '
the practice of the Court is not inconsitf
but agreeable to what is here pled. And
That the laws of our neiglibouritig nations
for tlie most part consonant to tliose princij
as well as the judgment of ibreip^u courts.

And to begin with the divine law, it ma
divide<l into two: First, the law of nal
which is the first of all laws, and hath no €
author than God Almighty himself. Sdo,
will revealed by writing, particujariy in
Uws delivered by Aloses.

And as to the law of nature, one of the
principles seems to be, that every action i
be constroed and regulated from tbo iotii

fofr the Murder of the Earl of Strathmore. A. D. 1728.

[98

. Everjr action whatever, except io
is coDJo'iDed with the will and inten-

• a^ent, cliflTeri in nothio^f from the
irrational cremtnre ; yea, if we may
s to call the o|ienition nr impulie of
te creature an action, the actions of
led from his intention and design as
sntnre differ in nothing from the
ftrntes, or the impalse of things iu-
aod consequently that action, be
I, cm neither be crime nor virtue;

* impulse or motion, not properly
laws or rules. But then, indeed,
im to be conjoined with tlie inten-
Mk is the same thini^, considered as
rf" a rational a^ent, there it comes to
to bus, to be considered as criminal
i : or if it appear to be accidental, so
depended upon no will nor delibera-
isoo, then it returns to be of the na-
ict of an irratioOal crcatur6,or inani-
iDce, and is subjected to no penalty,
pable of receiving^ a reward. The
)aence of which is, that it is the
De that determines the nature of the
'the animuM or intention was crimi-
ij the law of nature, the action itself
a crime. On the other hand, if ii
i f irtnous, the act is laudable by the
tore, supposing even a bad consc-
old follow. But, in the third place,

0 truly arise from no intention or
(oreming that action, it is neither
K punishable, it returns to be of the
Ij mentioned, the same with the like
srational creature, or the impulse of
ite substance, moved by a cause in-
itself. And the consequence of all
a by the primary law of nature, the
Mat make the crime ; and therefore
fear no intention to commit that par-
X which happens to be complained
t a crime, uot withstanding of a bad
ee ; it is considered as a tatalit}-.
'application is plain to the present

tiiat if the unfortunate act of killing
td lord did not fluw from any intention
Kted ; then that net is not bv the law
a cr.minal act, however the antece-
directed airaioat another may he cri-
t is another question, hoiv far a ra-
nt, vcrsans t>< illicito, is bound for
ces that did not lall umler liis iiiten-
'. shall afcer^vards endeavour to shew,

1 neither a question iu the law of na-
D the divine law ; but is a question
m the municipal laws of particular
, or at farthest from the law of na>
letimes called the secondary law of

point, that the intention directed to-
act committed, must govern the ac-
to render it criminal or not, accord -
first principles of the law of nature,
be pretty plain, if we retire our
torn other aher laws ; so indeed it is
and illustrated by the written law of
iVIL /

God, as delirered by Moses, with rmrd parti-
cularly to the question of manslaughter. It is
almost unnecessary to o)»serve, that whether
the remedy against the penal consequences of
actious, committed without intention, was in
form of an absolvitor upon the trial, or by bar-
ing access to a city of refuge ; it is the same
thing : the question is, what was to he the pu-
nishment that was to take eflfectP If the pu-
nishment was to be stopped in that form, by fly-
ing into a city of refuge, the principle of law is
the same,as if the effect had been to be stopped in
any other way. And just so, as we will after-
wards have occasion to notice, it is the same
thing as to our law, whether the manslnyer was
to be safe, by flying into gyrth or sanctuary,
according to the old law, or now to be safe by a
judicial absolvitor or restriction of the punish-
ment. And just so with regard to the law of
neighbouring nations ; it is all one, whether a
man is to be freed by beneflt of clergy, or such
other form, if he is to be free. The foundation
question is only, what was the panishmenr that
necessarily, cum effectu^ falls to be inflicted
upon a homicide orsnch and such a kind ; and
as in this case, upon a homicide dommitted
without tbrethoufifht Or malicious intention di-
rected agamst tiie person that hath suffered ?
And therefore if, by the Mosaic law, one in the
pannel's circumstances was to have the benefit
of a city of refuge, the argument concludes,
that by that law he would not have been sub-
jected to the pain of death. Indeed we believa
we will be able to go a little farther to shew
your lordships, that, according to the opinion
of the most learned interpreters and doctors of
the Jewish law, the l)enentof the city of refuge
was scarce necessary in such a case as that
which is now bel'ore you.

In the 19th chap, of Deut. the cities of re-
fu{ve are appoint^^d to be separated io the midst
of the land, that every slayer may fly thither :
" And this is the case,"(«ays thetext) " of the
f«1ayer, which siiall fly thither, that he may
live: whoso killeth his neighbour i^norantly,
whom he hated not iu time past;" or, as it is
said to be more literally in the original, '* from
yesterday the third day." By this text your
lordships see those two are conjoined as expli*
catory of one another, *' ignorantly whom he
haten not in time past;" and so the word *' ig-
norantly" is put in opposition to " hatied iu
time past," and by that means the sense is

tilain,that by ** ignonintly" is not|nieant, without
Knowing that he kills his neighbour, but with-
out a fure- knowledge, a foresight, a former ra-
tiocination and design : in which sense, know-
ledge is most frefjuently taken, because it is
imiKtssible to maintain, that if a mau i^norant-
ly kill his ueighbour, even whom he hated be-
fore, taking the word " is»iorantl\\" in that
sense, of his not knowing that he kills him, or
killing him by mere accidviu, without his
knowledge, can he liable as a luurdcier; be-
cause it is impossible to conjoin e\c» preuous
enmity wiUi accidental iguoraiu killing, «<> ■"
to make out a crinie ol luuv^^v •, \W\ >^*:^<i *^'
11

99]

2 GEORGE II.

cccdiotf inconsistent with every |>rinci|jle of
reason, tur more uith a law fluiviiig^ from infi-
nite perfection. But then the matter is fully
explained hy ?er. 11, of that same chapter,
which determines when a man is not to have
the benefit of the city of refii^ ; " But if any
man bate his nei{;hhour,and he in wait for him,
and rise up against him, and smite him mortal-
ly that he die, and flieth into one of these cities:
then the elders of his city shall send and fetch
him thence, and deliver him into the hand of
the avenger of blood, that be may die." Here
are both sides of the question put, the one fully
to explain the other ; the last to explain what
is meant by <* i(;norantly, whom he hated not
in time past.*' The last text does bv no means
•ay, that if a man smites his neighbour whom
he knowcth, ahhough without hatred, and
without lying in wait, and without rising up
against him, that he shall surely die ; but ou
the contrary, puts the issue of his dying upon
his liating uf hhn whom he killed, and u|x>n
his rising up against him whom he did kill ;
and u(K>n his lying in wait, that is, in other
words, n|>bn bis designing to take his opnortu -
nity from a premeditated malice: for indeed
the meaning cannot be that of a formal lying in
wait, or lurking in a pussage where the person
was to pass ; but he who debi^ns the thing,
and takes bis opportunity, lies in wait in the
plain sense of the text Besides, the word * * ig •
Donntly" ?ery plainly imports, and carries
under it that case of a man's killing, by mis-
adventure, one whom he did not intend to kill,
that is plainly ignorance ai to him who was
killed ; and yet it will be true, that if he de-
signedly kill one in place of another, mistaking
the [>ers<)n, but designing to kill that person, as
aup|K>sed to be the other, he does not ignorant -
ly kill the man whom be does slay, he kills
him knowingly, although he mistake the
man.

Nor is it of any importance, that the exam-
ples immediately subjoined in the 5\\i verse,
are instances of slaughter entirely accidental ;
and where the slayer did really not know that
he killed, that is an example, but not an ex-
ample exhausting the rule, which the lltli
verse fully clears, as not extending the capital
punishment to all who caiQe not under the de-
acription in the 5th verse, but to those alone
who ^* bated their neighbour, lay in wait for
him, and rose up against hiiii."

And though this is plain vnough from that
part of the law, yrt the matter is indeed more
fully exjdained in xxxvtli chap, of Numb,
where there is another ordinance as to cities
of refuge, and thev are appointed to be six ;
and the general mlc is set down. That every
one that kills any person unawares, may fly to
thote cities. Nothing can be plainer than
the meaning of killing unawares, tnat is, with-
out deliberation, unexpectedly, without fore-
tboaght, ex improvito, es inconsuitu: these
are bW aynonymous, and accordingly the
Septnigict translntioD to renders tbo words
n9fm,UiA iS| ** hivoiumarily ;*' and lo like-

Trial of James Carnegie^

wise the Jewish doctors have expl
will afterwards be noticed.

Ader this the text goes on with

meiit or amplification of that y

" And if he smite him witli an

of iron (so that he die) he is i

&c. And if he smite him with

stone (wherewith he may die) ;

he is a murderer, 5cc. Or if he

with an hand- weapon of wood

he may die) and he die, he is a

These are the amplifications ; bi

lows the limitation in the 20th ve

if he thrust him of hatred, or I:

by lying of wait, that he die ; <

smite him with his hand, that he <

smote him shall surely be put to dc

is a murderer," &c. Here is th<

he that killeth or thrusteth wi(

weapon, is a inunlerer, under th

introduced by the particle ' but,' as

tory exception to the generality

but if he thrust him w ilh hatred ;

other wonls, that he is a murderer

him in hatred : and therefore cc

refer from this text to the other

nomy, already cited, for explicat

where it is stalutcd. That if a ni

neighliour, and rise up against hiii

him ; whereby they plainly uudersi

ing him of hatred, as the same w

against him, and smiting him witi

as to comprehend every maune

witli any weapon ; and conse<|ui. n

is not a distinct manner of killiii'^

is expressed in the IGth verse, b

adjected to the manner of killing, s

it capititl, viz. That it must he doi

And this is yet more elearly ex pi:

32nd and fblloivin<>[ verses, y^ here

tion is Ntated lietuixt thrusting s

of enmity, with a direct rcferi'iieii

17th, and 18th vei-scs, *' But if h<

suddc'niy without enmity, or ha%

him any thing, without laying

with any stone whercwiih a man uk

him not, and cast it upon hint tha

was not his enemy, neither soii<;l'

then the coiigrc;4ation shall jmi;.

shall deliver the slayer out (d the

avenger of blood. *' There ril

methods of killing before-inentit

ferred to : thrusting, properly apf)

killing with a sword, but \viih<

casting any thing upon him, uitl!

wait, or forethought, or with any «

with a man may die, the very ihii

inlhe 17th verse, and from which

to be a murderer ; yet, it he

enemy, neither sought his harm,

munlerer, he is not to die, but lu

from the avenger of blood. 2So tin

last vcri«8 are a plain limitatioi

went before ; the instrument, w ha

was to raise a presumption, it a

but yet if itapiiear the pervon %va

or hurled at, or smitten in euui

I] fir the Mwrier fjfihe Earl of Siraihmore. A. D. 1 72&

[102

'ffv to be ddifcred ffrom the aTengrr of

ctn it stnmble jour lordihipt, tlitt
Hid ferse are thew words, '* teeing
iwtC ** if this were one of the renuisites
ftr the ilayer^t safety* that he did
taan whom he thm8tat,or killed
iMtttthiragh not done in enmity: for,
til impOBnble tn imagine, that the
'nag him not," however they miq^ht
iccMe of throwing a stone, can hare
10 the words, ** thrusting with-
How can a man thrust at him
Mfth not? Or, How can he smite
I he seeth not, in any proper sense of
f Aad therefore it is plain, that as to
'^* ' the only limitation b, that it be
Mtat enmity. But, Sdo, your lord-
tiB obaerre, that tlie word *• him** in
" seeing him not," is not at all
; itisau ailjeclion of the trans-
, as such, is distinguished in different
in any correct editions of onr bibles,
I is an erroneous adjection : the
inrid be only •* seeing not ;" and per-
il translations ou^rht not at all to be by
-:-■-•, c« aecinjj," but, according to the
Latin language, by an adjectire,
M, impmidui imprudent^ or the like \
iBBiiduig to oor langua^, by a substan •
■lidvcre, such as, * without foresight :'
^isBeptnagint does translate it in these
■mlm, which, in our language, is di-
'viibool foresight,* that is, without
iisD or anterior design to give the
Aad so the sense comes out, that
tthroft or blow of that kind is given,
' lity, foresight and premeditation,
words, $ine dolo^ that there death
^ y> fellow, but the slayer to have the
.■••''ibe city of refuge. And that the
■nent lawyers, and Jeuish doctors
. have understood the scofke of the
it liv to be such, is the next point we
'ttdettonr to shew your lordships.
'Mio ibe first place, we heg leave to refer
"Wincifnt treatise, called Mosaicarum et
■^htrum Leirum Collatio, last published
W^ letnied Schulten, with his own notes
m\i\ in tbe first Tit. of which, De homi-
■■Jewu, V. voluntate, § 5, are those words,
f||M dr casualibns homicid'iis Moises Isga- |
KfciuSiautem non per inimicttias immi-
^ItBper earn aliquod vas non insidians, vel
JJ*i qoo moriatur, non per dolum** (your
*^pi will please mark those last words)
"ftftcMcrit Miper eum, et mortuus fuerit, si
^ inimicus ejtis, &c. liberabitis percus-
^•** Here is directly set down, by way
'pnpbrsse, the sense of the 93rd verse of
r'^ib chap, of Numb, before cited ; and
Riy of these words, * seein||^ not,' the
n^nie of thb ancient collator is expressed
V*ewocds, < noo ner dolom ;' which shews
JfiMefHanding ne bad of tbe words, di-
2%coBgnioo8 to what we have above set
m% ■ppnhciidi to be the Sep-

tuagint translation ; and this paraphrase the
annotator approves of as the just meaning of
the text.

But we beg leave to give your lordships ano-
ther great authority, who founds his opinion
up«in the notions of the Jewish doctors, or rather
sets forth what they all a;;rpe<l on to be the
import of the Mosaic law on this head, and
that is the ^ve^i and learned Selilen, in his
treatise, De jure naturali et gentium, jnxta
disciplinam Hebneorum, lib. 4, cap. 9. The
title of which is, '* De homicidio involuntHrio,
sen quod casu factum aut errore." Theie the
learned author takes notice of all the texts upon
this subject, and of the Jewish doctors \iho
hail wrote upon it, whose names we need not
trouble your lordships to refieat, but retVr to
tlie quotations Selclen makes. That learned
author takes notice of three sorts of homicide,
which he and the Jewish doctors reckoned to
be involuntary, acording to ihe Mosaic law,
and not to be punished with death : the first
is, What is merely accidental. Tlie second
is. Where the killing was not merely acci*
dental, but as he expresses it, " prope acce-
dens ad violentiam." The third we beg leave
to set down in his own words, as commg up
directly to our case: '* Tertia aqtem homicidii
involuntarii species est, ubi qui alium occidil
ex errore quioem aut ignorantift, quae tanieo
prope accedit ad id quod spontaneum est sea
voluntrium ; veluti uoi quis alterum occidero
volens, alterum jactu aliterve perimit, aut ubi
jactu sive saxi sive teli in hominiim cietum,
ciijus nee ignarus qui jecerit quis occisos:
adeoque intervenerii culpa latissima. £x tribua
hisce homicidii involuntarii s|)eciebus, nulla eat
que morte ex sentent ft tbreusi ordinarily, sive
in Ebneo aliove circumciso, sive in proselyto
domicilii, aut gentili alio puniretur. Nam in
nniversum pronunciant, homiuidium nullumi
seu qui non sponte seel us patraret, sic foro
puniendum." Yea, he goes farther, that, in
this last case, according to the Jewish doctors
opinion, there was no need of going to the
cit^ of refuge, for that the avenger of blood
had not a power in that case to kill.

We apprehend, nothing can be more direct
or strong to the present case, than that autho«
rity which is laid down, as the universal opi-
nion of the Jewish doctors, which we hope does
deserve some regard in the interpretation of tbe
Mosaic law.

And this naturally leads us farther to observe
to your lordships what we insinuated before^
that the question started by Roman and mo-
dem lawyers, how tar a person that intends to
kill one man, is liable to the pain of death if
he kill another, hath no foundation in the
Mosaic law, either from the texts, or the opi-
nion of those Jewish doctors. As to the last,
your lordships see, that Seldeu from them,
directly states the case, ** ubi quis alterum
occidere volens, altorum jactu aliterve peri-
mit;" and he and thej^ determinoil that to
be an involuntary homicide, not punishable
with death; and \s^ »ppreti%Y^^ Vbal \^ tkk\a

103]

8 GEORGE U.

Triat of James Cant^ie,

[

tbey are firanded in the words of all the
texts, ** If any man hate his neighbonr, and
}ye in wait for him, and rise np afifainst
him, and smite him mortally, that he die :"
Not one word here of rising up against one
and killing another ; not a word of hating one,
and in consequence of tliat hatred killinff
another : that was a case which did not fall
under that law. The hatred and the rising
up, W88, by that Isw, to be against the man
who was killed ; if another by fatality happen
to be killed, that was a different case, it was
an inToIuntary homicide ; the crime there was
not the killing, but stood upon the rising up
against him who was not killed ; and so the
punishment was for invasion, but not for kill*
log. The texts in the book of Numbers are
all to the same purpose : « If he smite him
who is killed of hatred, or hurl at him by
laying of wait that he die, or in enmity smite
with his hand that he die," &c. where all the
rules are still directed towards the person
alone that is killed ; and that of killing another,
when the stroke was not designed at him, is
ijjuite left out of the case. And the applica-
tion of this reasoning to the present unhappy
accident, is too evident to need enlargement. If
it appear that the push was aimed at Bridgeton,
that the enmity was againat him, and not against
the deceased lord ; then, whatever bo the con-
stitution of the Roman, or more modern laws,
the present case is quite out of the description
of tne Mosaic law concerning this article of
manslaughter.

What hath been already said at so great
length, does fully obviate what is offered in
the pursuers' information in way of answer. It
is true, that the general rule in the divine
law is, <* That whoso sheddeth man's blood,
by man shall his blood be shed ;** and so, by
the sixth Commandment, the prohibition is
general, <« Thou shalt not kill :'* yet even the
Commandment itself ad mite of exceptions ;
such as, killing in self-defence, and killing in
execution of justice, and killing in prosecution
of just war, and the like. The other rule like-
wise admits of exceptions, not so as entirely to
t'ustity the killing, and to make the act lawful,
>ut yet so as to excuse from the |»ain of death.
The texts already noticed are express, that a
man's blood may be sheil, and yet the blcxNl
of the shedder not be required en that account.
The question is, Whether this misfortunate
panners case comes not under the exceptions ?
And that we have already discussed.

The positiou, that by the law of Afnses,
M Death of asuddenty was plainly ca)Mtal, and
that the slayer had the bcoeiit of ibecity of re-
fuge, only where the slaughter was by mere
roi»fortune," is assumed wituoutsuHicieutfouu-
dation. It is plain, that he who thruMts without
enuiitv, does not kill the man by mere casual-
ty : the act I'rom which death tbllowa, is a vo-
luotanr act, although without euiuity : andal^
ihougfa the killing is involuntary, and so can
never be said to So merely casual in the sense
4ho pmuan would laktt the wordf; neUherva

the words in Exodus, *' If a man lie n
wait, but God deliver him into his hand," i
least contrary to what bath been advsn
for it is roost properly said, that where tb
is without the de^i^Q of the killer, withou
mity, and without hatred ; that there, in i
as concerns the killing, God hath delivcre
man into the hand of the slayer. The
meaning is, that where a man is killcc
with design, but that the thing happens b
over- ruling hand of Providence, pcroM
things of that kind, in his sovereign wii
and from hia supreme power ; that ther
person is delivered to death by the over-c
hand of God. And where could ever th
more properly applied, than on the presen
lancholy occasion, when the providential
ing about of the unfortunate, dcceaseil loi«
casioned his receivuig the fatal wound ?

It is likewise a position assumed w
reasim, *' That wherever a man was kill
a mortal weapon, that was murder by the
saic law." vfe hope we have already da
strated the contrary. If enmity and foretia
was required, (and we need only repea.
one teso, which expresses the kilHng ■
with a stone, wherewith be may die) the'
text declares the stone to be a mortal we^
yet for all that, in case of the circums
mentioned in the other verse, the slayer vb
to die, but to be delivered from the aven
blood : and this single consideration m i
sufficient to refute such a position. I»
possible for a man to use a mortal w •
where there is no enmity, nor design to k
person who is slain? If it be possible, as
tainly is, tlien can we imagine thatal^
perfect as the divine law itself, could dp
man guilty of murder, because of the '
such a weapon, where he really intend
more barm, than a man that used a wea]
another kind? Besides, that in truth
weapon is a mortal weapon with which s
may be killed : and therelbre« to iniagio
the divine law laid such a difference b
an instrument of iron, and one of another
is certainly to go too far. The law of Gc
put the matter upon a much juster tbi»ti
wit, the intention of the person, which
can distinguish his actions.

The pui-suers also say, "That thoo(
argument is grod, that wherever the beut
the city of refuge %vas not competent, the
crime was capital ; yet it does not fulloH
where the power of the laws were susp
by the jut a»yli^ that the punishment is
be capital iu a country where the jiuofy/i
DO place."

but. with submission, this is no solid v
arguing : the question hitherto treated is,
was tlie Uw of Moses, with regard to pi
inents in the case of manslaughter ? If tl
Disbmeni in any case was not ca)Ntal« be
of the privilege of the asylum, tlie cone
isjiist, that the all- wise G<nI did not inteiM
puniskmenta should be mflictcd for such
taaoe^ aiid tht fiwm of granting the pnH

MS] Jor the Murikr of ike Hart of Strathmore. A. D. 1726.

irike BUKhant, does not alter Ihe subsUnce

fht MSt poiii lodertakeo to be illastrated,

m, TWt MBclauglUer, under sucb circum-

gtaMHW occur in tbe present case, was not,

Iviha SMUBOo law, pnaisbahle by death : and

M isfBMBi ami indeed be divided into se-

•iieh as, Imou Tbat culpable

sw not so ponishable, and tliat bo-

■aittsil opoo sucb high provocation,

WPfcRfifeQ by Bridgeton, coiiM amount

^flUli hooMtdt only. Sdo. That, by that

ki^aidnucd lord not having beeu intended

UltkiiilMttbe invasion, whatever it was,

lajiiBit another; Uie killing the earl

*,ortl worst culpable, not puniahable

iiitftB the first of these points, we shall

" Jior lordships with infinity of laws

■of lawyers that might be adduced

Ae poiot, but ooly take notice of some of

iMl raairkible, and which seem most ap-

*' II tbe present case. And in the first

faoodationof the Roman law on this

to have heen laid down as early

Aidijief N'uina ; tor the Roman writers

■iiiiieeof a Itwof his in these wordu ; *« Jn

felvbul ciiitum est, ut si quis imprudens
■ lecidittet, pro capite occisi et natus
RiieBMiooeofferret arietem.'' This law
bisMieeof by Pithaeus, in his annota-
W^tliefore-citeil, ancient treatise, cfim-
pHf ibe Monir and Roman Uw, with refl^ard
MiMofinaiiUaugbter, w agreeing pre-
M^aitfcthelaw of Aloses; and tho plain
■■■■Ci^it is, that where a man kills ano-
■>,ilihosgfa cul|iahl^, yet if if ho sine doh
f^yn^tiam, hi is not to Riiflcr death, but
*■■*•*«> thracnl til the n»»arest rehitions
"•fViOii killi-d: and the same treati»e
'■■'•Beof a rescri pt of Adrian's to the same
^^•.directed to TauriniKs I'^iintius, approv-
^'^ 'Moment given in ihc cawe of one Ma-
•^nMUf, whereby the prucunsul had nii-
^P'Bdi^lMjnishment of manslantrhter upon
•tpMJwJ, thai suppose it was done per las-
«*«i wd culpably, yet il ivas sine doio. The
■*die* Ihe rescript are, ** Pcenatn Marii Kva-
nbrccie, l^atc Taurine moileratus es ad mo-
^Mi rni[n; ; relert cnim, et in majoribus de-
w cuosuiio alio quod admiltatur an casu ; et
■xisooioihuM criminibus distinctio hcec pcc-
■uiiMjiistitiam provo<:aredel>etaut tempera-
■wtom adniittere." And ^»chuIten, in his an-
•Wmss, explains what is meant by casu in
■»« aords, ♦* Per casum hie intellis^itnr fieri
^ iioo fit dolo, quomodo et quod impetu fit,
•^ Jicittir fieri," I. 1, sect, a, ad leg. Cornel.

Lbi pro causa, editiones veteres
^fbttsm recte haberi casu certi»imum est.'*
•fcefc, by the bye, shows how erroneous the
^|ars' isterpretatioo of the words casus and
Ijssi • M, » hen they w«Mild reslrict them to
^ ii done by mere acciilent.
' 1W ReacTid rules or the civil law arc plain
2|^ paint, tlMt it is the ** animus qui male-
wildiHiBguU ;" %kMi tlMre can be uu wuiiler,

^* aine aniiso occidendi." But tibeao gononl
topics need not be insisted on, whore the texto
tbiemaelvea are so express, auoh as not ooly
these already mentioned, but even tJJMt 1.1, sect.
S, ad leg. Corn, de Siccar. " Divus AdriMUif
rescripsit, eum qui honiinem oocidit, ai noo oc*
cidendi animo hoc admiait, absolvi poAU».'' And
a little after, ** £t e|t re coostitueadum boc^
nam si gladium strixerit, et in eo percttsserit^
indubitate occidendi animo id eum aduiiaisso.**
But then he adds the exoeptiou, " &:d si olavi
percuasit. aut cuccum^ in rixi : quamvis terra
percusserit, tamen non occidendi animo, lenieii«
dam poanam ejiia qui in rixa caau magis quana
voluntate homicidium admisit." It is truo that
the pursuers, and indeed several of the doctors,
endeavour to turn this text the other way, hy a
plainly erroneous interpretation, and wrong
pointing of the text. They pretend, ** Thai
where a wound is given by a sword, there th«
awmus is undoubtedly presumed ;" and ao far
right as to the rule. But then the law aeta
down the exceptions ; first, if the stroke bo
** clavi aut cuccuuift/* suppose these be mortal
weapons wherewith a man may die, yet be*
cause they are not instruments exiiressiy mada
for death, the presumption is, that **aberat
animus occidendi." uoleMs i-ireumstancesmaka
it appear otherwise Then the seconil excep*
tion is **in rixa, qnamvis term percusserit,'^
although a mHu strike witli a swoni, yet if it ba
in rixa. suddenly, or ujion a provooaiiou giveD,
*' tanien non occidt-ndi animo, leniendam pca-
nam " because ^' in rixa, casu magis quam
volnntate homicidium admisit." Thoiie doo«
tors, inrleed, who go wrong in the interpreta-
tion of tliis text, pretend, that the meaning of
quumris fcrro is not, although he strikb with a
awiini. lint would make the meaning to be,
*' Although he strurk witli an instrument of
iron," and so make the word J'errum^ and also
those words im rijrci, refer to other words "• clave
aut curcuma ;'* so as that the sense should be,
if a man strike, " clave aut cuccunia in rixa,"
althoutrh these be instruments of iron, he is not
presumed to ha\e had the animus occidendi.
But, with submission, as t)oih the learned
Noodt and Sciuiltun observe upon that law, the
interpretation is strained, and imleed illiterate :
for the word /rrruw is never used in law in that
sense, but always does sii^nify » sword, and so
the expres^un is the same, hut ornately repeat*
ed in other words, as if the emperor liad said,
** in rixa quainvis gladio percuatserit :" and so
the sense is, that the animus is in (general pre-
sumed from the using a sword, that it is not
presumed where the instrument is not an in-
strument made for death ; hut if the killing
happen in rixa, the animus is not presumed, al-
though the stroke be given with a sword.

And this is likewise the opinion of the learn-
ed tirotius, in hiii annotations upon the text, in
Numbers aiiove cited, verse 16, which, in the
l^tin translation, is rendered ** Hi quis ferro
pcrcussriit ;" on which Grotiiis hath Uiisnote,
'^ Mos Khraiorum luultis verbis rem circumlo-
qui. iStiiikUb e^ ; mortis esse poiuam quali-

107]

fi GEOHGB IL

cooqae ti\o <|uia homiDem ocdderit. Ex telo
pnnuinitur malam cofwilium, nisi oontrariiifn
appareat.*' Tbero your lordtbips see that au-
thor's epinion is as-we plead, thiat the using a
mortml weapon presumes the design, hut not
'* preesumptione juris et de jure ;" for he adds,
** mm contrariuin appareat."

The rescript of the emperor Antonine b like-
wise as express on this head as can be, 1. 1,
Cod. de Siccar. " Frater vester rectius fecerit,
si se prcesidi prorincisB obtolerit. Qui si probt-
terit, non occidendi animo hominem a se per-
cussum esse, remissIL homicidii pcaiill, secun-
dum disciplinam militarem senientiam profe*
rit; crimen enim oontrahitur, si et voluntas
oocendi intercedat, csterum ea qnie ex impro-
vise casu potius qnam fraude accidunt, fato
plerumque non noxos imputantur." Here the
emperor plainly sets down these two things,
first, Ths!t " pcsna homicidii est remittenda, si
animum occidendi non habuerit/' 2do, That
where the thing is done ex imprcrvt90j there is
no animui ; that it is to be looked upon as clone
colli, by fatidity , rather than crime : but never*
theless that in such a case there may be an ar-
bitrary nunishment.

The doctors of the Roman law seem to be
unanimous on this general point. Carpzovius,
one of the severest criminalists, is most express
upon it ; *' Ceasat porro pcena ordinaria bomi-
culii, si culpa vol casu fuisset commissum ho-
roiddium ;'* and goes on, '^ quod adeo verum
Ml, ut m homicidio lata culpa, dolo non sequi-
fwretur." Clams is likewise as express upon
this general head ; and such shoals of others
are by them quoted and referred to, that it were
vain to repeat their names, or trouble your lord-
ships with quoting their words. We don't
know that any lawyer of reputation differs upon
the general point

But then indeed the question comes, What
is culpable homicide? And whether the pre-
sent case fiills under that description ? Which
is next to be illustrated. And here we humbly
insist, that where the homicide is committed
upon a sudden quarrel, and provocation given,
cspeciallv by real injury, and that quarrel be-
gun not bv the killer; that this is no more than
culpable homicide: and for this, in the first
place, we oppone the law already cited, ** in
rtxa quamvis ferro perctisserit." And to the
same porpose is the first law, § 5. ff. ad senat.
consult. Turpilianum, the I. S. Cod. de abolit.
and the § 9, 1. iG, de pcenis ; the words of
which we shall not trouble your lordships with
rtpeating, because they are the common texts
founded upon by doctors on this head. We
have likewise lor us the authority of all the
ancient, moral philosophers ; such as Aristotle,
Plato, Plutarch, and many others, likewise com-
Monly taken notice of by the lawyers on this
aabject. It is true, some of the severest cri-
ninalists, such as Matthssiis and Carpsovios,
Am't admit the role in general, but still they
admit aa mach as is necawary in the prewnt
qucttinn: tbey doo't allow, that where the
killcc ii muiv rixm^ tliat he it at all to be a-

Trial qf James Cart^lef

cased, although the killing happ
iracundia ; but then most of tlicm
if the killer be not the auctor rixa
person provoked, to whom a just
has been giv.en, especially by a
and so particularly Carpzovius, on
verest, after he has argued at Ion
the general point, concludes in lii^
§§ 14 and 16. '* Nihil quoque ad
gula adducta, quod scilicet delictu
missum, mitins puniri soleat ; quia
de ira ex justa causa proveniente ac
duplex etenim ira est, alia ex justa
venit, que si non in totum, tamen e
cusat, ut delinquens mitius puniatu
non provenit ex justa causs, qus i
cnsat." Then he adds, ** Hsec dis'
mnniter recepta est ah interpretibus
severals. And then concludes, ** H
causa calorem iracundioe pneceda
quia ah alio fuerit provocatus, au
offensus, time is qui ir& et intenso
motus, provocantem seu offendenti
absque dtibio a poena ordinaria libera
vero si quis, absque justa et pml
iratos, aliqnem occidat, dc) ^no ci
loquimur, qui p<ene homicidii ordii
quam est eximendus." And then t
that the practice in the court of J
agreeable to this.

There is an adjudged case vei
published in a book, called Alpho
Neapolitanl Consultationes Decis
learnedly resolved. It is the Decis
shall state the case in the words of
'* Quidam nobilis Ragusinus fuisset
extra (sed prope) ecclesiam sanctee
tri Gravosa, a quodam alio nobili F
eodem pacto evaginavit puguiuncm
tum verberantem, ac in fu<>;am jam
et ipsum insequens, unico vulnere
in dicta ecclesia (qnam ille intj^ret
dictam ecclesiam egrediens sese in I
et cum dictus verberator, ex dicto u
vulnere intra dictam ecclesiam mor
The case came to be tried, at leasi
tions upon it to be resolved, by the s
sus; where several questions occ
those which are most applicable to
case are two : First, '^ An hujusin*
diiim in ecclesia perpetratum, turra
vduntarium necne, eo quinl dictii
secutus fuisset ilium cessantem a vt-
ferendis, ac aic unico vulnere inflict
set?" The second question is, *
nobilis pnedicto modo ac de causa
tam immunitatem ccdesiasticaiu, V(
seculari, et ecclesiastico pccna nidi
tendus, vel solum mitiori pcenal*"
tion upon the first question is. That
first view, the homicide might seen
<* £o quod dictus nobilis, neinine i
pellente, fugientem hominem vuln^
bilominus nullo pacto fore judicand
dinm voluntarium, aut pro tali diet
nm.^ The reasons fi>r this n
down with great laamiDg and ju*

W] >r the Murder of the Earl ^ atratJmore. A. D. 17S8.

[IW

MM hif, that h iiimpoisiUe to repent them :

fnliTkey ire taken from the defiuiiion of vo-

kmrf bomiodr. Stlo, From tlie texts of the

iNOilnr, ond the opinioD of doctors. Stio,

Fiaalbt particular, that the noblemau had

' ' "^ ]y itruck before; ou which the

ruble, " £z hoc ergo articulo,

clidtur hoDiicidium hujusmodi

et mm voluotarium, nam Quli&

■■iiiMqMnte,evaginato pugoioDe, ipse do-

percusaus iosecutus fuit dictum

jam fugieotemy et hoc pro honoris

DMinDe, ut sic se tueretur ab in-

flnonli recepta ex verberibus :" after

■W Mm a kwg reasoning, all in the pan-

lAAfMn. And this case we take tbemore

t0M d, kcaose the parsaers pretended to

■baAliictiMi betwixt the case of a wound

^mA§ rcrjT moment a real injury is done,

■Uifilwgifen after the iqjurer has desisted

talaUBi, and retinsd to some distance ; but

jjiiap difference, except the interval be so

1^ kcao be supposed the thought of the

TJared iru cool. The other question is

loolfed in favour of the arciuied, that

a ene, not the ordinary punishment,

ladaiaiticslor civil, ought to take place,

■ftttif llie pana mitior^ and conlirmed by

■7 itaf reaaons, which we cannot recite,

" ' to.

jtt oilier authors that might be cited
^fP"^ ^ifl opinion, is the learned Voet,
biaTcr^asciioo cited by the pursuers, ad.
^tikf, eon, de Sic. n. 9, where, after he
iWjMiwiiat is cited for them, that onekilliug
ttikr whs has provoked him only by a verbal
vii|hiiajiry, " vix est ut ab ordinari^ pcend
*■*•*"»*;" he adds, that if the provo<.'a-
ii}' ao atrocious real injury, tliat would
to mitigate the ordinary punish*
lei U> confirm that, cites Matlm:us,
&c. And the reason given by these
fur making tliis allowance, in case of

Bfm»ocalioo, is expressed in these words by
H^nd, ad. 1. 17, d. t. *' Quod ei sit igiios-
■rfsmff^iiiprovocatus seulcisci vuluit, tjuiquc
■*■ Mortm prosequitur."
M iodeed we a|>preljend this opinion is
■ssAnl in the first principle of nature ; for
Vttas} JiunaQ constancy can suflersuch high
al injur jr, without the passions being inflamed :
d afdKia<;h killing is no doubt an excess in the
isnitiA of • rpal iujury , yet still it is but an ex-
■« SAil the iujury shews the thing done
Afiut de«ii(a ; ano iherufore, becnusc of in-
■raU«, human weakness, the punishment
it to be mitigated. And the application to
IprtMrDt case, as we apprehend, is obvious ;
ii|t«i« had given the highest provocation,
My by a track of verbal injuries and en-
vavs lu pick a quarrel, but had committed
taosi provokint; and real injury, to throw a
rinaa over head and ears in a dirty puddle,
ftf aiddle of a town, and «ight of so many
kakcra ; do injury oould be more pmvoking.
I lafeul there was Diore in it than an in-
fmkf : one thmt waa abU to throw thepaa-

nel into the puddle in that manner, was like-
wise able to have suffocated him there ; tha
pannel had no reason to expect otlierwise, and
therefore do wonder if he betook himsell to hia
sword.' And the other circumstance noticed,
that Bridgeton, immediately upon the doing the.
thing, endeavoured to draw and make himself
master of my lord Stratlimore's sword, ga\e the
iiannel ground to expect the worst ; and so it may
be doubte<l, if he was obliged to wait till Bridge*
ton should have'an opportunity to give him the
blow, even with a mortal weapon. And when
this is considered, the fact goes fartlier than a
retortion of the highest injury: the pannel
was in some measure put upon his delence ;
and granting that his pushing at Bridgeton
was an excess, yet still that excess falls only to
be punished pand extraordinaria.

All lawyers distinguish excesses of that sort
into three kinds, tliat of time, place, and
weapon that is used ; and excess in point of
time is punished even with death, where tha
interval is great; because that interval pre-
sumes fraud and deliberation : but here waa
no excess of time ; the thing was doneer ia-
continentiy when the injury was fresh and re»
cent. There is likewise excess m point of
place, when the injurer is allowed to retire to a
considerable distance from the place where the
injury is given; aud this in some measure
coincident with the other, because it implies an
interval of time : yet if it be not great, tha
lawyers hold it to ble only punishable arbitra-
rily. And then the third is the excess in tha
use of the wea|Min, where there is no interval
of time or place ; and that is always agreed to
be punishable only arbitrarily, where the pro-
vocation is high. *

From what is said it seems plain, that if
Bridgeton had received tlie thrust, the homi-
cide would have been culpable only ; and so
it remains to be considered, ii' the case conies
out worse for the pannel, because it was uiy
lord Sirathniore that received the wound, and
not Bridgeton. And we apprehend it does not,
but ou the contrary, that this gives a great
strength to the detence: And that because,
Inio, The push being designed at Bridgeton,
shows that there was no malice at my lord
Strath more, neither prcnicditated,nor presumed
from the giving of the wound: for admitting
it to be true, that in an ordinary case, the
giving a wound with a mortal weapon presumes
the dole or inalcvolous intention ; yet that can
never be where the push is pointed at another
than him w ho by fatality receives it. And so
the case comes out thus, that the [lanncl in
making one push, could not design it at two per-
sons ; and so if he designed it at Bridgeton, it
is impossible to say he had a design against
my lord Strathmoie. It is plain in the nature
of the thinfl^, that the design, though presumed
from the giving the wound, yet in point of time
it precedes the actual recei% ing ox the wound,
although that preceding or precedence be but
momentary ; and therefore if, in the very act
of pushing, the design appears to have beea

ILl] 2 GEORGE 11.

agarnBt Brid|(etoii, it excludes all pretence oF >
any animus a^inst another who received the
i^ouud hy fatality, in the very moment that
the design was pointed afi^inst the other.

And here your lordships will likewise ob-
lerve, that there can be no animus Decidendi
presamed at all atprinst anv man, not eren
against Bridgeton himself; because the draw-
innf a sword, and pirshingf at a man with it, does
nut of itself presume a design to kill the man
pushed at, eaccept the woand, and death ac-
tnally follow: for it is from theerent of the
wonod, anil death following alone, that the in-
tention is presumed. Therefore since death
did not happen to Bridgeton, the law cannot
presume an intention to kill him ; since the
foundation of the presumiitio^ is removed, or
did not happen. If the blow had missed him,
or had not killed, but wounded him; the in-
tention would not be presumed ; and therefbre
it cannot here lie presumed, as the case hap-
pened ; for there is no such presumntion in
law, as that killing one presumes a design to
kill another; except where it appears that the
slayer killed one man by mistake, taking him
to be another : as for instance, killing Cains in
the dark, when the killer really beliefe<l him
to be Tilius; there indeed the killing of Caius
iH«sumes the intention of killingTitlus, although
he was not actually slain : and thercfoi'e in that
case the killer is indeed guilty of murder. But
it is quite another case, where one man is
killed, not by mistake for another, but by fata-
lity, when the push was intended at another,
whom the killer knew, which is the case in
band. And therefore we do humbly insist,
that it cannot be said there was an intention to
kill Bridgeton, since his death did not follow.
Neither can it be said there was an intention to
kill the earl of Strathmore ; liecausc, though
his death did roost unluckily happen, yet the
tni/itcm, upon which the intention roust be
founded, did not happen, the push being made
at Bridgeton ; for those two must always
concur, the push made at iUe man who dies,
and the actual death : and wbiere it happens
otherwise, the death is a mere fatality ; not
Intirely innocent, because the killer was so far
fiittlty in invading the other ; but then it is no
more than an invasion ; it is not murder from
malice presamed. No presumption of law can
get the better of contrary evidence : the pre-
sumption of law may be, that where a man is
killed, he was intended to be killed : but if from
the circumstances the direct contrary ap|K>ar,
that there was no intetitinn against hi:n ; this
is evidence which excludes the presumption ;
and so there can be no murder in the case.

It is indeed a case stated by the lawyers,
what should l»e the consequence, if a person in-
tending to kill one man, kill another ? And we
acknowledge they are greatly divided among
themselfes upon theqneition ; a great many of
the sMest of thesn ure in all cases clear, that
where one man is killed, and another was de-
signed, it cannot be murier, because of the
want of tn intention against him. Bartolus,

Tfial of James Carnegie^

Farinacins, Gomcsius, Menocliius, and r
bers of others quoted by them, are pla
that opinion, and give an account of se
judgments of the courts of Mantua and Na
and others to that purpose; and Farin:
says, that it is tlie common opinion, " £t a1
sentpntiu in judicando nun esse recedend
And however other lawyers may seem to c
yet, in the first place, the divine law, for
thing that can be found in it, is on this
because it pliinly speaks only of beating
and rising up against him who hap|>ens
ally to be killed, and mentions no suchcai
deserving death, as this is of rising tip a(
one man, and by fatality killing another.
That this was the opinion of the Jewish do
is plain from the quotation already br<
from 8elden, where this very thing of k
one man in place of another is made part
third case stated of involuntary homicide
determined not to be capital. But 3tio, ^.
lawyers, who at first view seem to diflF
reany not differ, when the cases are d
guished : for what they plainly mean, is
where a man by mistake kills Titi us, beli
him to lie Mevius. This we admit is ca
for reasons before given ; hut not the oti
killing one by fatality, and not for anothe
directing the blow at the other.

But then your lordships will observes
all lawyers agree in this, that wherever a
is to suffer tor killing one, when ho intend
kill another ; that ran only be where the
tliou^'litand duluse intention to kill the otI
certain, but'not where the invafiinn is ex imp
And therefore, supposing one invade anu
with an intention to hurt, or prtruUre, ai
lawyers call it, hut witlumt a c«>rtain evid
that his thorough intention was to kill ; t
supposing the blow intended for one do
another, the killer cannot suffer death :
which by-the*bve shows your lonishifis,
there is no snch presumption in law, as,
because the push killed the earl of Strathn
therefore the pannel intended to kill Bridge
for if that were law, then the question i
never occur, but would be inept, wlietl
man intending t(» kill one, and killing an<
with that blow, is guilty of murder, or is
sumed to have intended to kill that oth
whom the stroke was intended? We
trouble your lordships only with two autho
on this point, which are very direct to ihei
the fi riit is that of Htrlichius, which w<
rather notice, because he seiMns to be ag
IIS on the general point ; after discussing w
he hath these words, speaking of his own
nioii, " Fallit, si quis ali(|U('iii iion oirciden
percutere tanlum, volens, aliutn prater ii
tioneni i>ercutiat iit moriatur." From this
lonlslii]is see, that it is no consequence,
because the thrust killed my lord Strathi
therefore it should be ptesunied the pann
tended to kill Bridgetun : if thai were
that lawyer's poiiitiun, from whom nolKxh
fers, must be direct nonsense. And thei
fince there is no other eridence of a fartbi

theMttrdero/theEarto/i

* BrMgtIM tirati pcrcnlcrt, er-

Btttlmlmhoriiir lunl^trarb-

ll hk ib*th cannot |>rmiiiire it ;

■ "(T ifae iwsition Ui« lawyer

i[ti tny I '

ir Itiirt lie iulviiitnl to ito
■'inn at rtqiluiD,
.-wLill.

■'■iiiatiis, oajl.
"■ly (luCEtinnt be
tt' lb* kilJcr VM oeeupatuc in
■l«ny H^^irres-
the CMC her«,
Mliabl«>, altbongh he r.lianee
If : bnt tliFD he goes riirtlter,
nplinailreiaextrinlariius, reus
"" «IB, orcapaiiis, tali tHiiien
il, DtMCuuin iaterferissel,
rtam tiitiatA, ijnii|urtiKO
ipmoioslBtbalcin ncpperii

' ' ftl : com CDitii Coii

errurtiMifn enm 4

debvl: atqueCainpo-

fbnit, *el iracuoiliam

erit, id quoil induwcii-

Here joiir lardshi|]S

: of a rixa, wh^re one

n BriJfreioji iliit; he

«ach a COM killing the

lninf«r ileaih ; much l«u,

killing of a third (wiiy :

' olMerTa be ancrls fur-

*wilt

r, l»<i

of theslaii^hlcr.

omeiyet i-lowr Id iht

latnea Caium idTersa-

I, Kd illi tautum norare,

impnidenlGr st ictui oliji-

torcnl, tune certe im|iru'

ii 4HieliUD rel agfp-aTare noi

il ipodvralorem rixie se noo nb-

umaiibiiort ex propiDquo

a nedrnle forte remutior,

re naxuni inde reporiaMPt,

rs obiala eat : excusandiii

,*TC(umr tunc, cum occi'

«i«dfui*Map]>iiift."

lie M the preirent questioDi

h h were ■ rcMluiion on ih(

ir lnn<«lM[i« see, that not-

11^ killed, theauthor say«

se an|war, ihai there « n^

t Mlier : the olbpr, who,

■naancc, migbi doi ban-

e bMn bprt anrf

a tliat came

vltabehilM. This

H itHiK not ap-

B kill UcMirelnn,

~ n killed, Ihii he
indeiJ ; and

tare. A. D. 172S. [114

bnnuse «f tlin fblalily of killing the (leceued
loni, '■ qui "tibito rorpiM siintu ex pnipinquu
objecil.*' An<l ii|>Qd nil tbnse groiiriiis. wb
humbly b9ial, tbatilBriUgelOTi hail Weu killed,
there WAuld bare been nu place tor a CHpltal pu-
nish mctrf : bnt ibenBeparalely, whatever be id'
that, that since it doee Dot appear (nnr cauunt^
rieaih ffitt not follow)ihnt there wB« a cer-
tain intcniicn to kill bim, tho casual kilting of
the earl ofStrathnHiv cannot bp puniabable ivilLi
death.

What has been saii), fully rcmoTca any ar-

Kment that may lio drawu from air Geor^
ickoLisie'e opinion, " Thui lie who by dim-
lake kills one tor aitnlUer, should die:" For
your Wilsbipsaee, that be siieaks only of that
cose, wlien one man ia certanily iittended to b«
killeil, but another is killed by mistake, bein^
)iiipitoierl 10 be him : that ia not the case noir
bctora v4>iir lordships.

And til this qiieaiion, concerning thepauml's
iDtcnlbn and iteaigii- 'lie cin^uniBtaDce of hi«
bein^ overtaken nilh drink, is a circa inMalica
tliHl ivninta in the arf ument. We do oot say,
thai, heiiig drank affords a deftrnce for killing ; DO-
verlheleaK it isa cireuinitatKC whereby tDkbow,
there wna no malice or dole, especially agoinat
the earl of Stmllimore; since erery boity raay
conceive, howes&y ilin for a nraii that Is drimk,
pDsbiBi; nt ODe, even to atagger upon aootbeTf
or not to hare the judgtnent and presence of
mind lo draw back, when thai otlier auddeoljp
IhroWB himself in t|ie way of ihe tbrusl.

Wh.it ia laid duffn by the piinuen, in op'
(HMition to all this, in Iheir int'ormaUon, i* ao
fully obviateil, tbat il is quite needless to repeat
ilieirnrgument; only whereas they say, "That
if killin'^r, notwiihilanriiii^ of provocation, bad
not beet! capital, il ooiild not hare been a doubt
in the common law, wtictlier a hntbaud oui;hl
to NufTer deaib, who kitlad his wile taken io ibtt
actofailuttery r" But we apprehend, that tha
direct contrary conieqiienee ti)llow«. that if liigli
prOTocatinii bad not affonled a iletence, then
mdeed (here could nnl hari^ been a doubl ih«
busbaml must have died, berause high proTO-
cation wa* ail that be had to plead : but lti«
doubt was, whether a provocaiion of that kimH
where there was no real corporal injury lo the
husliand bimsetf, wua aufficietit? Aud ilie Ini*
rfetermiues that it waa; and couseqiienlly c^la-
blishes the rule, tlial hi^h and grievous prura*
cations ought to alleviftle ibe piioi'^binenL

The br-ortnl, that " veranos in re ilticila te-
nelur <le omai evenia," olTordB no argument
agaioit ibe panncl in this oa«e ; nor indeed
hatb il been much insiittod on by the pursuer*.
luii>. It IS not true in many cases. Uut, ado^
It holde in no case, except with regnnl to con-
seqiitnees or evenU, thai happen with rrgar4
lo that siiltjpct or oliject, agaiart »lK«n or
H hich Ihe unlawftil act is tlirecieil = aa for in-
utance, if one aeisfire to u liouse, be is giidty of
murder, Ifa tieraon h«pi>cii lo bcbiirtii id tlirt
hnure; orifheunderiumea hwisi*, he i« linlile
for all ihe Bloods iknt m»y he dwlroyed by it>
Ml ; hot be ■• not liable for any uitruMi*

1 15J 2 GEORGE IT.

damafi^e tliat may happen to another subject
casually and by areideut: and ihereforei sup-
pose it were proved, that one unlawfully inrad-
in{? another, without a desifj^n to kill, might in
some eases be liable, it' death followed ; yet that
can only be with reflrard to the person he in-
vades, but never with regard to what acciden-
tally happens to another person. And so Carp-
zoviiis explains the matter, an. ]. §. ult. in
these woras : ** Supra dicta enim (quod nempe
dauti operam rei illicits iroputari defaieat,
quicqoiu tuerit prceter ejus intentionem ex eo
actu secutum) procedunt tantum, quantum ad
subjectuni, circa quod rersatur ipsa malitia il-
Hcite operantis, et quantum ad ea quee illi ob-
jecto per se et immediate junguntur, autneces-
sario sequuntur ; non auten quoad illaquee per
accidensoriuntur, a re ilia mala cui opera datar."
ttesides, it is certain, that the brocard is no
rule at all in the matter of manslaughter, other-
wise there never could be such a thing as cul-
pable homicide ; which it Is plain tliereis.

The next thing to be considered is, what was
and is the law of Scotland concerning this mat-
ter P and first, as to our ancient law, the pur-
suers seem to be the first that ever disputed,
that according to it there was a distinction be-
twixt slaughter and murder. Sir George
Mackenzie is express upon it. By our law,
says he, slaughter and murder did oVold differ,
as " homicidium simplex et premeditatum*' in
the civil law ; and murder only committed, as
we call it, upon forethought felony, was oidy
properly called murder, and punished as such ;
for which he quotes the express statute, pari.
3, cap. 51. K. James 1, appointing that murder
be capitally punislie<l, but chaud melie^ or
slaughter committed upon suddeuty, shall only
be punibluble according to the old laws, and se-
■ veral other acts of parliament, to which we
beg leave to refer [See the abstract of them at
the end ;] which expressly make the distinc-
tion betwixt forethought felony, and slaughter
^f suddenty : and though none of all these laws
particularly express the punishment of inau-
slaughter, as they could not will do, becaube
that wa:( arbitrary according to circumstances ;
yet, as sir George observes, the opposition and
distinction is established betwixt slaughter by
forethought, and chaud tutlle, hud the punish-
ment of the one to be less than that of the other :
and therefore, we apprehend, we may leave
tbui point as clear and undoubted.

The pursuer has endeavoured, to no manner
of purpose, to set up others of our ancient laws,
in opposition. to those obser\ id by sir George
Mackenzie, such as the third siatatc of king
Kobert 1, which, with submission, is nothing to
the purpose : for, first, It does not concern ca-
pital Climes only, but any crime touching limb,
as well as life, iido. Though the word
slaugliter is mentioned, without adding ^ bv
forethought felony,' yet the same thine is ada-
ed in other words, when it says, touching life
or limb, to which alone the act relates, that is,
forethought felony ; because slaughter, by
Qhmud milUf touobad ueitlier life or limb. Tm

Trial of James Carnegie^

title of the act is, ** Alen condemned t<
should not be redeemed." But what
to the purpose, in a question, who sht
condemned to death, and who not?

The 43rd chap, of the act of king Re
is as little to the purpose ; for as it sp<
hairships, burnings, reif, and shinghte
very plain it means only wilful, prem
slaughter, otherwise it would follow, tl
only wilful fire-raising, but burning of a
by neglect, or lata culpa^ would infer tl
of death, which noboav ever dreamed,
the next paragraph makes it further cle
pointing sheriffs to take diligent inqu
*' gif any be common destroyers of the
try, or hath destroye<l the king's liegi
hairsbip, slaughter," &c. Can a mai
common destroyer by slaughter, except
the slaughter is supposed to be by foretl
felouy ? Jt is certain he cannot ; and tht
the pursuer's procurators fall into a grei
take in law, when they say, that ^if
kenM with the assize, ^* Si attentus tin
assisam tanquam talis malefactor, condei
tur ad mortem," must relate to manslai
because the sheriff could not judge of nr
It is directly otherwise : if be be attaii
the assize as such a malefactor, that
eommon oppressor- by slaughter, &c. I
be condemned to deatli. This is an ex(
from the rule, that murder was to be t
the justice-ayr: this law appointed ii
tried in that way, in case the person a
could find his barras or borgh to com]
next justice-ayr ; but if he could not, th
riff was immediately empowered to trj
by- the- bye, this does not concern pai
fact, but concerns that general accusation
ing a common oppressor, like to the ca
sorncr, or one habite and repute an Eg
Nor can the lawyers for the pannel fi
word in the statutes of Alexander 2, wh
pursuers refer to, that docs in the lea
su])pose that niauslaughter was cap
them : the direct contrary appears, tha
slayers were to be tried, wiiethcr ^u
murder or not; and if found not guilt
they were to have the benelit of the
And accordingly Skccu, in his annot
refiTs directly to the acts of pari!
which sir George Mackenzie takes not
establishing the distinction, and to some
English acts to the same purpose.

As to the passage cited from Skeen,
Treatise of Crimes, tit. Slaughter, there
tainly a direct blunder in the printing ; o
stead of these words, ** or casually by
melle," probably it ought to have beeUj
casually, or by chaud melle ;" for
wise he directly contradicts himself, an
acts of parliament which prove the vcr
trary of what the pursuers would mali
assert: yea, the very next paragraph
blisheth the distinction in these wonis,
that the gyrth or sanctuary is nae ref
him wha commits slaughter be foretl
fekNiy ;" trgo^ it was t refuga to him tha

fff] firtht Murder of Ike EaH of Slrathmore. A. D. 1728.

[118

and chaudmelle ceased; and that it Vftm nerer
objected, that malice or premeditate desigi'n was
requisite to make the crime capital." And for
this they take notice of two cases, Ctirric
a^inst Fraser, July 1641, and Bruce against
Marshal, April 1C44. But in the first place,
the procurators for the pnnnel with reason say,
that i£ that happened, it was an error in judg-
ment ; for since the distinction was established
by the old laws, an<l that there was no law at
that time altering or repealing those old laws,
the abolition of popery, and of the flying to th«
kiik in consequence, was no reason for jutli^infj
contrary to tbecif il law's that wore still standing;
and if an esca|)e of that kind happened, it must
be attributed to the over-great zeal, anfl, if ne
may be allowed to say it, a sort of cnthusiastie
keenness of those times : And we do appre-
hend, that the act 1649, and the act of Charles
S, were intended to correct the errors that by
too great zeal bad then crept in.

At the same time, as to the two cases cited,
they are nothing to the purpose; for as to the
first, which is Fraser's, there was not one cir-
cumstance pled or proTcd which could make
the slaughter chaudmelle: But, on the con«
trary, it appeared direct premeditate murder,
DO real provocation, but a quarrel about a staff;
a murder committed in revenue, upon the
slayer's hearing the person killed had murdered
his brother, which plainly implied a preme-
ditate design. What argument this can afford,
is submitted. This indeed may he remarked,
that the case gives some notion of the spirit of
the times; the presbytery took evidence whe-
ther the murder wus accidental or wilful, they
found it to be wilful, and no ways ac<'idcntal ;
their having done so, was taken us evidence in
court, and even the wife of the deceased was
sworn as a witness : things, it is hoped, not to *
be drawn into example ; only so far it shews,
that even then it was a considi-ration i»y the
presbytery themselves, whether it was a wilful
murder or not i* Which seems to point at an
establishment of the distinction. But, in short,
there is not one circumsttiuce in the \« hole case
that could exclude the premeditation or fore-
thought, but all quite on therontrary.

The other ease of Marshall, in the year 164 1,
is as little to tiie purpose; he was lib* lied tor wil-
ful murder, and he confessed it, without pleading
remains, that according to the law any defence, because indeed he had iimmo. Jle

in his confession adjected some cirruiustances
which might have o'lfeu sonieroloiir, hut in-
deed very little for a ddcnce: !*nt he otlere<l
nopniof even of those circunistauers ; and his
own declaration could be no evith nee of ih'Mn.
They were not inlrinsie. but «\iriiiNie qualities
of the dec'laratitm. lie \\iu\ {.nveii rt'penti'd
stabs with a knife. W here k ouuI 1m* th" f|iu>*i-
tion that that was murder f AudtlieNt' tieiu^; :ill
the instances the pursuers bring heiore the :irt
of Charles 2, ii is plain they prove nothni:;' by
them.

As to the act, Ch:ules 2, [Sec tlic net at tho
end] it is humbly insi<4ted for tin; paii:iel, that
it introduces no new law against any perkoa

ihlrtter, not by forethought felony,

d hn eten from the arbitrary ponisli-

rfouibughter. And Skeen himself,

h hii OfGeitioD of tbe words chaud melted

Igil Mil ii I^tio rirft, ** an hot, sudden tuilzie,

vMili* which isopponed, as contrary to

Ifdony ; and cites the act James 1.

.kntteontrary in our law, if the effect

■kMot be tbe 'same ? And upon the

'Miooglit felony,' he in like man-

b tke just distinction, and supports it

MfHttwity of Cioero, in his treatise De

flU^ skre be is writing, as a moralist,

■latiiai orator.

Hi pmaen' answer to the 8th act, 6 pari.
X tifBte trifling; for nothing can be

eki tbe opposition there stated betwixt
fh fekmy and other slaughter : and
*e let statutes, •• that if it be fore-
fUMv, tbe slayer shall die ;'* tbe con-
tliobrioiis, according to the plainest
rkric,tliat if it be not forethought felo-
MH not die, otherwise tbe act is ab-
id IS to sir George Mackenzie's ob-
ipn these words, it is certainly not
iely placed as an observation upon
keime it plainly relates to the act of
fyiod therefore falls to be considered,
KCDme to argue the import of that act.
tfnoen' observation, by way of an-
il Ik Slit act, pari. 3, James 1, is en-
■vkt; for if it extend the difference
■ wHhooight and chaud tneile to all
^'ni u well as manslaughter; then
it establishes the distinction in the
tf MBilaaghter ; and so sir George I^Iac-
HkVkfwise says, in his observations on
^"^vell is in his Criminals. And as to
■■fc observation, that chaud vielle is by
''pBM law punishable by death ; that
■ifalotheact of parliament Charles 2,
■w lie examined with it.
l*" pvraers have further pled, " that the
j*^l if the sanctuary might he competent
Vwcnnei were capital ;" which he founds
^ tbe statutes of Alexander 2. But this is
disputing ; for if the flying to the
joioed with repentance, and so forth,
the crime not capital, it is all the
■wfhiof ; that is, in effect, to render the crime
"apiujooty by another form, but still the

^piffl of death was to be inflicted. At the
^* buie that statute concennng reifs,
■kwhy repentance abs4dves from the punish •
JM| is somewhat |»eculiar, and docs not at
I CSDtradict the other laws, which make or
JpK chfiud mtlU not to lie capital ; and the
■ pin nf thesutate, ap|>ointing, *'That if
NUjUB fly to the kirk, the law shall l>e
Mild observed to them," establishes the
K that if they were not found murderers
Ifcrtbought, I bey were to be returned to
pdMry, and frecil from punishment.
niionamsaj, "That after the Reforma-
^■Mfhe^KS onr/s was in effect abolished,
^ii irtiocttoo brtwixt forethought felony

119] 2 GEORGE II.

accused of slaughter, but ascertains somewhat
in their favour, viz. ** That casual homicide,
homicide in lawful dt^fence, and homicifle com-
mitted upon thieves, Ace. shall not be punished
by death. And then further statutes, That
even in case of homicide casual, it shall be lei-
some to the criminal judge, with advice of the
counsel, to fine him in his means, &c. or to
imprison him." This law seems introduced
to correct some abuses that bad been ; whereby
homicides falling under some of those descrip-
tions, either had been punished with death, or
at least that it had been made a doubt of, if
they might not be so punisbed. W hat those cases
were, does indeed nut appear frotu tlie records,
80 far as the pannePs procurators l^now ; hut it
seems such cases, at least such doubts, were.
But then the act does not determine what was
meant by casual homicide, and does by no
means say, that oothinff was to be reckoned
casnal homicide, except that which was merely
accidental ; but, on the contrary, it leaves
casual homicide to be explained, accortling .to
the construction of former laws, wliether our
own laws, or the laws of other nations.

2do. It is plain from the act, that, by casual
homicide, something is understood quite dif-
iereikt, at least beyond slaughter merely acci-
dental ; for the act is concerning the several
degrees of casual homicide : And so even ho-
micide in defence, and homicide committed
upon thieves, &c. are brought under that ge-
neral description of casual homicide ; and these
last kinds are given as exemplifioations of the
general description ; which shews, that casual
homicide was intended to be opposed only to
slaughter dolote committed either by preme-
ditate forethought, or malice presumed to be
Uken up from Uie circumstances immediately
'preceding the act; and therefore, however
critisal exceptions may be taken to the rule,
yet materially there is no strong objection lies
to it, because when ' casual' is taken in the ex-
tensive signification, as opposite to fraudulent
and dolose slaughter, all the species mentioned
in the art do properly enough fall under it,
and are degrees of casual homicide. And in-
deed it is worth observing, and makes in this
case for the panuel, that the rubric cannot be
said to have been iiuligested or adjected by
mere inadvertency, since the same rubric is
maile use of in the act 1649, and again repeated
in the act 1661, so many years af\er.

And this rubric afTonls another plain argu*
ment, that the legislative did at least consider
that there might be degrees of casual bomt-
cide, and consequently they could not under^
stand by that, onlv merely accidental slaughter,
strictly so callca : Since there can be no de-
grees of that ; it is but one, and does not admit
of decrees. And therefore this is sufficient to
shew, that more was meant than the pursuers
incline to admit ; and if more was meant, that
can allow of no other construction, than to bring
under these words what the lawyers call
** culpalde homicide," so as that your lordships

•ad tae juiy moy JQ^gv fiwa oiwTnwwmwt^

Trial of James CamegUf

whether the slaughter is to be
casual, or really malicious, from
pense.

The last part of that act of par
ther enforces that matter, which g
not only to fine for the use of the :
tions, but even to imprison for cast;
Now, how is it possible to believe, it
with anyju8tice,tbata man might b
for a fiict intjrely innocent, and no
culiHtble or criminal? Yet such hone
accidental is : And tlierefore this
monstration that the legislator und
under the description of casual ho
a fact might eome as carried a culf
it, and was not absolutely accid
nocent.

And this being the phiin meanin
it must remain only to consider, ^
pable homicide, or more particular!
case, does not, in a true and legi
under the words *' casual homicid<
hope we can he under no difficulty
good, from what has been alread;
that even by the Jewish doctors a
ters ofthe Mosaic law, homicide w
and foresight, hath beeu called,
micide;'* the passage above cit<
collation of the Mosaic and Ronr
pressly shews it. 8do, all that b
from the texts of the civil law, i
prove it; since they directly ca
** ex subito impetu, ex calore ii
rixa," where there was just
casual ; '* casu magis ^uam v(
casui magis ouam noxae imputam
all the rest or their expressions |
nominating all slaughters casual
sense, except that which is done
occidendi. Slio, The expressions
old laws prove the same thing ; t
slaughters are called chaud meii
medley^ which is casual : And so S
in the very place the pursuers
manslaughter committed voluntar
thought felony, or not (which
degrees be received) casually by
There your lordships see cAaiMf
pressly brought mider the descripi i
and so that being the case, we a
letter of the act Charles 9, we i
under the first branch of casual ho

And as we apprehend this hoU
so it holds more particularly in
case, where, whaterer was de«i|
Brtdgeton, yet, as to my loni Stn
killing was casual, and therefore
nnder the words of the statute.

It affbixls DO solid argument ag
the act of parliament bearn these v
removing of all qiieatioD and dow
arise hereafter in orioiinal pursuit
tpr." For, Imo, Those wonls i
understood with r^ard to the parti
ed Dpon, that it is for removing at
thooe partieiiUars ; for it can nexar I

thai Ibif or«py M of i^iriiafMit 1

ft/the EarinfStTnlh:

en B{t«i DDfoivseta casra, mkoy
'illupjmn that roulil --' ''" —

of tb>[ law : I'ur in

A. D. 1728.

e, ho-
ifiutfamob, Btrkitlj
^■■^, ii.li iiiini'i' iiiFiiF nf tlie noi^i; or
kaaa^ cniiiEiititi! ill ^iii.'ii>abDK Uie mcspc
rfklWKiuillj j in |jr ironed, Bndeuilem-
■■nfiaia^iti : anil mtoy other caw! mn;
kl%«i fii'i Jito, AccunlrDK lu tlie inter-
iili^n, Ibe *clof parlianienl

Cl-J

ihcwnae we give ihem; sod, ou
i> t dnta aM reinote all ^iieslionH,
'luwiicidn, anil lliis tpry case be not
bilmi tlie law ha« •Uiutsil (iiithinB:
B)b«r inie <*■; or other, but hsth
-I upon murder merely accideolal,
kitUint, and the ol'liers lliprein
, thai it may he pl?<l with-

. B culpable lioiFiicide ta a

||f iHarioide in deteuce ; lliouj.'ti oat
■" ^"*llre (if life, it is in dof'ence
' h^vry thrcKteotd, and ex-
jwior injury alreaily i^feu :
noaideratinna, ue humbly a |>)ire-
181 of obrlunieiit makea DMhiii|i|'
^DM, hut ratlier favuui'M him,
nl a hnmidilt^ imrely
tlint waa killed : and
irely diiiingiushe$ hi*
' olber cue that hnih been tried
parliainenl- And it may not
lu ii»Upe, ihut air Geoi^e Mac-
" Tb» wurd " cbhuU,' ia the ru-
terfik^ia<i, I* ukeu in the bx W|n>>fica-
'>Kk." Aad » >-y not Iheu tali* it in tbe tAtae
lw%lfcali n'in tlic alatutnry )Mrl f

jttivw ptwin tu [akr ludice d' sir George
lil^Mw'a DbaervaliniiB upon the 5tM act,
^mn. AnJ in itu) fir«l (ijacr, it'cir Georce
liflffiHBd lo go aa far in hi« niiininn tw tEe
■IMa pIraJ, we must beg leave to oiiiioDe
lfli«,i«l sAoiit thoiiitvrprelaliiiD ol il lo
W0 ImMiI^' Judgment, as ntil suffidiently
■nanng hM opinion. 2iIo, sir George saya
" " ' ~ " U ihe alauKhter'f hetii^ cmduI in
•e, where the lilotv was inlended
■er MTiuk by Iktatity. 3tio,
Il (0 Hu liir aa the ]iurauen
Id auMdi tU«»i ; Ibr, in hit tibHTTBtion on
M ut4 ilu uri, liB nnly «ayi in |^neral,
Tbal cA^itd mtiit at Aomicidiiun in rixa com-
^iMw, II npital Ijy our [ireMUl kw :" and kii
im aamaaj v^'Mni Ibr iuMaace, where the
A* m tJio priiTokor, wlit<ra he reilffatre
ktAv> )■ auch a maimer, as to shew a Ibre-
bvkt a^ rnriBCil deii^n, although not ni'e-
■UU«d lor a lonj; intvrtat ut lime betore :
m m tiwrce dnm l>v »u mtuuiq uy, that

4ltcraarda I'l l« iioIiC(nI.
rtatiuo liji III till' OOlh act il no wayi
' " That uuirder.

il piiQuhatite nilh death :" by which lie n
mr-an pretiivdiiatcil tnatice, and that ta t
liir no doubl malice, wlieiv it oui be pri-iu
IVoin Ihe iict ithelt', anil where tli« counary _
not >|ipear from circiiuislances, ii puiiisbl
by death, without further lurellioi^hl ; '■
then he aubjoins an esce|ilio. ' ' ' '

the mailer where it was, " exoepi," sajBta
" it be fMUoJ j" that is, aecordintr lo Ihe i
of I lie law : and so the gueslion remaiut, w
caaiial in Ihe nense ol' that law ?

The pursucra u«o an argument, which t(
to lie or no force, " That if inaae1aught*r *■■
not capital, llien the crawn could nnt parilon
any capital slau^terj because by »ur Uw the
crown could not paidon murder." IVe mit;ht
easily ailmit the whole, wilhoul biiniog our
argument ; for if it be true that the crown
could not nanloD murder, then ii in likewice
true that ne coiiJd not panluu any shiiighter
tliat was cftpital ; because no daughter m'aa
capital but murder: neierihelesii the puskion,
that llie crown could nol pardon murder, ii nM
supported by practice, and, we doubl, not by
nor law; because iu aereral caaei. cten ok'
murder, Ihe very thiutc statuted is, " That lb*
|ierB(in of the criminnl slmtl be in the kisg'a
will ;" consequenily ihe kii^ caji pudon, u
well aa order to he put to deaui.

The pursueri, in their InfutmatJuii,. next gw
on lo nienlion a ^enl many caaeii ihii bavft
been judged by the Coui'i since tlie act IfiGI ;
anil the first menlioned is ihitt of Wm. Dou^-
la>i, which appears iu the Ilecords, and i» no-
lie^ by sir George Atackeozie, and is indeed
nuticedbv hiui u afoihtdulinnfor saiui-ihinga,
wherein be leema tn go tun far. But Ihi* ewe
will iieief deicj'ie any regard; it \ias ilwaja
been linked uprm as a liaril one, end we ars.
ulV-iId a tejiroach on the justice of the nation.
But at lh« same lime the fdulidid not lye oa
IlieCourij il uas tiuly Ihejiiry ; fur ihe Irial
went in i^eiieral upon tlie url and {larl ; awl
there Mppears no piiriicahir pleadings to this
purpose un record in thut case : tu that what
sir GeoT^ Bays of il must he froin mere me-
mory of tbiuifs ont thouKix Ri to be recorded.

The next case mentioned i» that ol >'ico|.
son, in the year 1GT3, which can never tnajM
for the piirsuem, Iiei-aiise there your lordships
aiulained boih tiie libel and the defeuoe, Iboiigli
indeed Ibe defciioe wa» not prated : and ihm*
fure, if the pursuers say, Ihnt the dclience waa
U|>on chauj mtllr, or culpalde homicide ; the
case is witli us, because your lordships aui'
taiaed Ibe defence. And eiUuiugJi i|i reality
Ihe crinie was (trored to be ttilfut murder, and
the derciiie noi proved ; yet so far it is on th«
paunel's side, ihni ihc advitLate iiuisied Nicol-
son. was vcnuni in re iltkita, by varrjins a
gun. which be ncknuwledued uaed lu gu naou
haH'-beud; yd y»ur lordsiiip<i •usiained tba
ilef^iioe, •' That the gun weui offiu a slruiT*
gle," Aud if an arguneol from a Uwycr'a
pIcBdiug be Kood for any l1>ing. sir George
ftliLuktuixic idi-d for the pannel, '' '

' 123] 2 GEORGE IL

•n, *' That there was no prejudice against the
|>er8on killed, and that the gun went off in a
■trufr^e." But, indeed, the case is naught in the
argument, and it seems ?ery strange why it is
cited : it is true the man was said to be drunk,
and there was not a pre? ious quarrel ; but then
there was no provocation, no justa causa ira-
cundiay and no iracundia at alt ; but the gun
was twice deliberately snapped, and the third
time the man was killed.

The third case mentioned, is Murray contra
Gray, yet less to the purpose than any other :
for there, the giving the wound was libelled so
far premeditate, that the slayer followed the
person out or the house where he was, and
killed him without an^ provocation : and not one
single fact was pled \n defence, but a strange
demand made, that the lords should make an
inquisition, in order to discover who was the
first aggressor ; but it was not once pled that
the defunct was the aggrressor or provoker.
What can be the meaning of citing such cases?

The next case cited is that of AinI, in the year
1693 ; which indeed is something more to the
|mr(K)se, but yet does not answer the pursuers'
intention : for the lords did not there find, that
every homicide was capital, except what was
merely accidental ; they indeed sustained the
libel, and repelled the defences, which were
mainly founded U|M)n provocation hy ill words
from a woman, and her throwing a chamber-
pot at the pannePs face, who was a soldier :
which the lords did not find sufficient to excul-
pate from the libel, which bore reiterate strokes
to have been given the woman in her own door
(which, by the b^re, tvas hamesucken) she
thrown over ihe stairs, and pursued by the then
pannel. That case was very singular : first,
an attack upon a woman by a soldier, who
ou};ht to have contemned insults from the fe-
male sex, at least, not returned them with any
blows : DO injury of that kind from a woman
can justify blows given, much less reiterated
blows, and deliberately trampling to death,
throve ing her over her stair, and still continuing
to pursue her : there, the presumed difference
of strength, and difference of the sex, made
such an attack a barbarous murder ; just as an
invasion by a much stronger man a^inst a
weaker, or by a man against a woman, although
not with a mortal weapon, would make a blow
with a mortal weapon, given by such a woman
or weaker person, come within the description
of self-defence : which is a case that lawyers
state, although the same thing would not be
good, if they were of equal strength, or that
the invasion was by the won'.an, or person of
weaker strength.

Another case mentioned, is that of Carmi-
•hael in the year 1694. But sure your lord-
ships must l>e weary of so many cases, so little
to tlie purpose ; for neither there, is there one
circtimstance pled upon to exclude forethought,
or to show that the thine was casual in any
sense ; but some trifling dyjections against the
firm of the libel : only, indeed, drankeDntss,
by itself, was foandcd on, which your kirdships

IVial of James Carnegie^

did not sustain. And who can doubt i
be sop

The seventh case mentioned by the pii
is that of George Cuming, in tlie yeai
And upon locking into the case, it n
owned, that it seems a very narrow, bar
but then the whole burden of the pi:
pleading turns upon this. That supposin
was a rtxa, and that the thing happenc
a sudden quarrel ; yet Cuming himself <
first provoker, and the aucior rixa, and
fore could not plead the benefit even <
defence ; whicn indeed brings the case
what all lawyers ag^e on. And had
been for that circumstance, it is imposs:
decision could have gone as it went : fo
feet, the kingf's advocate admitted the d
barring that circumstance ; but insistei
that as what governed the case. Yet s
decision is narrow.

The pursuers also mention the case o
net of Carlops, anno 1711. But it is
ajgainst them ; and it being to be noli
the pannel, shall not be dwelt upon here

The next case is that of Hamilton of
anno 1716 ; which does not all meet : fo
a plain murder was libelled, that the
first made several pushes with his swo
scabbard upon it ; and not content wit
drew the sword, and gave the defunct th
tal wound. And no provocation was ple«
on the part of the pannel, except what w
bal only. And the only real injury, by s
with the sword and scabbard, was ad mi
have been given by the pannel. And i
it was there pled, that the defunct I
rushed upon the sword, that was ronti
the libel. And if the fact had come so c
libel would not have been proved. And
fore, that case does not all meet; foi
were not sufficient circumstances to c
the dole, or so much as to make a honn
euiposum.

Another case they mention, is that ol
mas Koss, and Jeffery Roberts, 20th
1716 ; which makes against the nursuei
is set forth by themselves : for there tli
did sustain the defence of provocation by
receiving a blow on the face, being pullet
to the ground, and beat with a great s
car- rung, relevant to restrict the libel tos
trary punishment. And thongh the
**To tne imminent danj^erof his life,*'
sert, as they were pled m the defence ; ^
was not a fact, but a consequence inferrc
the being struck with a sticK. And if th
culum vita bad been the foundation on
the interlocutor went, then it must hav*
unjust ; because no man alive ever dc
that a man in self-defence might lawful
without being subject to any arbitrary p
ment whatsoever : but the case was, th«
lordships found the provocation and real i
reduced the fact to a homicidium cul
Yon indeed sustained the reply, that tl
funct was held by Jeffrey at the time of i
ing the wound, becaoM tbit oxdodcd tl

for the Murder of' the Earl of Strathmore. A. D. 172S.

[125

oT the pinnel's being unon the ^iinJ
be gave the wound, and made the fact
It to murder ; because it never was
d, but if one stab another, especial iv with
*, which is stabbin|^ in the must baruamus
when that otiier is held, and so put oot
ilaie of Joine further injury, that is mur-
jf the la w of all nations.
tfonoers likewise mention a case of Da-
i^ without noticing either date or circum-
■; and therefore the pannel must con-
Ibere was no defence projiosed, exclusive
Me or forethought,
caaeof Lindsay and Brock, the Greenock
I, is very far from nutting the ca^e out
k, or indeed touching it at all. The
18, that the defunct was enticed out of
Be, and was attackefl by two at the same
asd when he and they were on the
Ij one of them, which came out to be
y, slahhed him in the throat with a |)cn-
Tbere your lordships did not sustain
■e as capital against them both, even
ae art and part, but only against the one
Nokl appear to have given tlie stab, and
■K ont to be Lindsay : but tlien indeed
ood, not without difference in opinions,
vcriheless he had the benefit of the in-
y^ upon this foundation, ihatthongh the
MM was dolosumy because of the cir-
laers, yet it was not from malice preme-
: and the majority were of opinion, that
JRBnity excluded nothing but prcniedi-
■nier, and did not touch any case done
a, notwithstanding tlie person guilty
W the auclor rixa. This does by no
I ^etertnine any question lietvrixt a dolo-
ai cklposum homicidium ; for that fact
safitd to be do'osnmy and indeed so found.
ne. u proves that an indemnity may reach
l^ameiJium dolosum^ ^^ here the dole arose
^ely, and not ex iutcrvallo ; hut that
oth.ng to this question, nor is it proper to
ipiiii the argument about the iudenniity,
lai the judgment is given.
r%<e of Mathews, the soldier, the pur-
idmit, was of the same nature, and so
no other answer; only, that, in that
hirre were no circumstances sufficient to
e the dole, or make it only a culpable
de.

M are all the cases the pursuers have
'ned. and, if numbers would do, no doubt
is enough ; but your lordships are to
bow far to the purpose : and one thinj^r is
Uible with regnrd to them all, that not
them touches the cn*i** in iiand, in so far
?erDS the slaughter's being casual as to
d Strathmore, the invasion being intend-
iDfl Bridgeton.

DOW the <xiunsel for the pannel be;; leave
notice <d' several decisions, even binre
vhich directly establish the point pled
pannel ; ami thc^ first is I\Iason's case in
ar 1G74, to he seen in the Itecord ; and
iffrred by sir George Mackenzie. Ala-
is accuitd of killing Halnton j tlia de-

fences were three, first. That Ralston had fol-
lowed Mason from house to house, at last put
violent hands upon him ; whereby Mason was
forced to throw him off*, and that he fell against
a stool. 2do, That the wotmd was not mortal^
but Ralston died ex maloregimine. 3tio. 1'hat
the homicide was merely casual, and io self-
defence, RaNton being the aggressor. The
lords sustained the litiel only rete\ant to infer
the panam extraordinariam^ and separately
sustained the other defences to assoilzie in tO"
iuntf and remitted all to the knowledge of tbs
innuest. Here your lordships sec, the killing
only sustained ad panam extruordinariam^ with-
out regard to the three deft: noes of casual ho-
micide, self-defence, and dying ex malo regi'^
mine ; for they are all sustained separately to
assoilzie, even from the pana extraordinaria :
here then was a culpable homicide, sustained
only ad panam cxtraordinariam^ though neither
merely casual, nor in self- defence ; and so thera
can be no judgment more direct upon the point
now pled.

And here the pannel must notice, once for
all, that it makes nothing to this question, that
iu that, and other like cases to be mentioned,
a mortal weapon was not used ; for it is one
question, what is sufficient to make a liomicidt
only culpable P And quite another, whether, ii|
our law, there is such a thing as culpable ho-
micide, though neither merely casual, nor iu
self-ddence P That of the using a deadly wea^
|>on enters into the argument, whether a homi-
cide is dolose or culpable only ? But it makes
nothing to the other question, since homicide
may not be merely casual, although no mortal
weapon is used, as appears both from this de-
cision, and the case of Bain, cited for the pur-
suers.

Another case is that of Cricrson and others,
12th March, 168 1 ; where the paunels being
accused of murder, for killing the defunct in a
scuffle ; the defence proponed was, that the de-
funct was the first aggressor, and did invade
the pannels, or one or otiier of them ; and that
William Crierson, or one or other of thera, be-
ing standinuf hefore the fire, the defunct threw
the said William, or one or other of them, iu
the fire, and fell upon him himself; and then,
after the scuffle was over, the defunct did rij^e,
walked up and down, discoursed, and of new
aga>n heat the said William (srierson, and
threatened to kill him if he would not be gone;
that the defunct went in goo.l health to the
door thereafter. These the lords sustained re-
levant to liberate from the ordinary pain of
death. Here is another decision in point ; the
crime was not found merely casual, or the ('ourt
must have assoilzied ; at least, could only have
imprisoned, and could have iiillicted no other
arbitrary punishin. iit. But that was not the
case, it' was Ibund culjiable, and not merely
casual ; and therefore the punisiiment rcbtriei-
ed. Sure then it is not true in law, that all ho-
micides arc cajiilal, un1e»>s the}- be merely ca-
sual.

A third case, is thi^t of 3Iaxwell and otiiar-

131]

2 GEORGE IL

ftlaui^hter; for the peace is broken by the
penton killed, and with aR iudignity to him
that received the assault : besides, he that was
so aflTi-onted miffht reasonably apprehend, that
he that treated nim in that uianner might have
some further design upon him/' Your lord-
ships see how close this is to the case: the
insult ^nd indignity done by Bridgetou was
?ast1v stronger than any thing here mentioned,
and having received such an affront, the panuel
had reason to expect worse ; more especially
when, as we offered to .prove, Bridgeton was
endeavouring to pull out my lord Strathmore's
sword.

We must likewise humbly ref^r to several
cases set down by serjeaut Hawkins, in his
Pleas of the Crown, which fully agree with
what we now plead ; and particularly take
notice of what he says, pag. 84. " If a third
person hap|>en, accidentally happen, to be
killed by one. engaged in a combat with ano-
ther, upon a sudden quarrel, it seeiqs that he
^ho kills him is guilty of manslaughter only."
And it would seem that there is even a diffe-
rence made, betwixt killing a person that en-
deavours to interpose, if he tell that be comes
for that purpose, and killing one who acci-
dentally is interposed betwixt the two contend-
ing parties; which was my lord Stratlimore's
case. The killing him who interposes to se-
parate, if he give notice what he is doing, is
reckoned worse than the killing the other.
And this obsjervation shews that the present
case is stronger than the above-cited case of
Graham, where your lordships restricted it to
an arbitrary punishment. And what that au-
thor observes, confirms a distinction we have
made, betwixt a man quarrelling with another,
and killing a third party, where it' is proved
the killer had a felonious intention to marder
the other, and the case where that does not
appear; for however, in the first case, he
might be guilty of the murder of the third
party, yet if a design to murder the person he
quarrelled with is not proved, then he can never
suffer capitally fur killing the third party : and
we have already endeavoured to prove, that
that must be the case as to Bridgeton, where
he ga\e the provocation, and no act followed
againsi him sufficient in law to establish a
desi^ of murdering him.

The pursuers have cited the same books,
and Mawgridge's Case, as for them ; but that
we submit. The particular cases of Hollo way,
and Williams the Welchraan, spoke of by
Keyling, are not at all to the purpose : the
Weli-hman's case was no judgment; but nei-
ther in that nor in Holloway's was there any
reul |)ersonal injury, on which a great stress is
laid in all these questions.

The pursuers mention another case stated,
but never adjudged; a person shooting at
fowls with an inteut to steal them, accidentally
kills a man ; that will be murder. This per-
haps may be justly doubled. Sure it wouM
be too severe. But supposing it were so, it
iiof M lioportmot: tttaliBg, treo of fbwliy

Trial of James Caruegie^

by the law of England, is felony of
prepense ; and where a roan attemp
commit one felony, does another, there
doubt but in strict law he is guilty of the
committed.* But what is that to the a
provocation by a real injury ?

The pursuers have quoted the auth<
V<iet, and a decision observed by bin
Sande, to prove, that where one man i
tended to be killed, and another sla!
crime is capital : in which, no doub
differs from many as learned lawyers, i
of the other side. But his opinion, a
of Sande, is obviated by what is ahead
it is only in the case of no provocation
injury on the part of him who was desi
be killed. And Sdo, It is always ta
granted by Voet, and all who are of tl
nion, that the design of murderins^ the
intended to be inviuled, do appear and is
but we have already shewn, that cannot
in the present case.

The pursuers pretended, that then
circumstance in the libel which implied
against the earl of Strathmore, viz.
the thrust given was followed by a
push." But as there is nothing in this
may be the subject of imagination, 1
never be the subject of proof, unless
pretended, as it is not, that the uanut
back or out his sword, and made a
thrust ; which will appear not to be tri
the nature of the wound ; and the thr
be found to have been so momentary,
was impossible. Sdo, Jf any thing 11
happened, it will appear, tfiat there
more in it, but the pannel's staggei
moving the sword, by his weight Icanin
it. Stio, There is no relevaucy in it
the fact being, that the pannel push*
Bridgeton : and no circumstance will i
appear, that he knew he had touched i
of Strathmore till some time after the
was perfected.

The pursuers further pretended, " '
they had libelled malice, they would
from other antecedent facts that had hi
some time before, whereby it would
that there was enmity betwixt the deft
the pannel."

It is answered for the pannel, Imo,
such facts being libelled, nor, to this
condescended upon, cither in the deba
formation, they can by no means er

* At the Lent assizes at Chelm
Essex, 1763, two sailors were convi
the murder of a farmer : the case v
sailors came to steal the farmer's foi
farmer with his son pur^iued them ; on
sailors struck the farmer several blowi
arm, which (though not likely) kill
This was held to be murder ; tit*cause
they were about was unlawful ; but thi
after several respites from execution,
his majesty's most gracious pardon.
Edition.

2 GEORGE II.

ISfiJ

CuuA JuRicuBu, S. D. N. KcnK tenU in
novoSeHioiiudanMBargi de Kdiobui^b,
wcuDda die tncnaw Augurti, muUmjoio
MptiDgoiteaimo Tigninw octavo, per
boDorabile* finM Aduunm Cockburvs d«
OrmiUoun, Jwticitriuni Clericum; Do-
tuiniim Gulielmani C&lderwiwd de Pol-
' tnim; H»([i(trilm DiviJein Erikine de
Dud, Dominum Giitlunim l:>riDKle de
Nrwhall, et lUigiMraD) Aodream FTBteher
de Blilloun, CarainiaiiouriM Jiulidvic
dicL 8. D. N. Regia.

Cuiu kgitime affirmata.

JiMKt Cam«jt«,of ElDbiven, pannd.

Tbe Lordi proceeded lo make choice of the
ftUowiog Anizen :

Sir Robert DickBMi, of loTenak.
Geonce Loch, of Drylav.

*Jotin Wiiioa of Slumja.
' Watt. Riddel, of GraDton.
Geor|re Warrender, of Burntafteld.
Tho. BioKOfOf Bonin({Uin.
•Geoive Haliburlon, of Fordel.
Jtmrt Bftlfour, of Pilrig-.
Robrrt Duodat, merchaat, in Ediabnrgfa.
Darid Inglis, aier^aiit, there.
David Burd, mercbaot, Uiere.
Alex. Blackwood, raerchaol, there.
, 'John Couls, mercheni, there.
Julia Slereo, merchaat, there.
James Iter, ^IJsmitli, there.

The aboTe asaize beini; all lawfully ■worn,
•od no lanfiil objectiau in the cootrary, tbe
punueis for prabatioa adduced tbe wiioccin
■Iter de[ii>niD<:, vii.

Riitrt Hipburn-c, hammennau, in Forfar,
flolenm'y tw^rn, ixirfreil, cximiacd and inter-
rugate, de|ioneu, Tuat lie vat io tbe lii.in of
Vorfar, the 9:\i ilay of Aluy last, betwiiLt the
hours of i'ii{ht and cine o'clock at nigbt, where
be ilid liee the decvaaed earl of Strathinore, loril
Roifrhitt, aod Mr. TLoniai Lyoa my lord
Siratbmore's brolher, nalkiofr ia tbe tlreeti;
and al thf amu lime did see Lyon «f Bcidge-
lOD, and Fiabnreo the paimel, Elandiuii uear lo
the lady Auchiahoaic her houic, upon the
alrecl; what words pa-sed betwit^t then), Le
being- si a ilisuucu could not hear; iiw firidge-
* — --- e Fiuliaven a |iii£h with hit band; and

Triat ofjamet Carnegk,

oot know irbelber be got it drawn
law Fin haven draw bif iword befor
offered to drai* my Ion) 8tialhni
when Bridgeton wa> coming upfTo
where FinhoTen fell, he lookei
ihonkler, and seeing Flnharrn wil
drawn, be went fatter up to my
more, aiiaid is ; and when Finbati
my lord Strathmore being standing
of butts from the place where Fii
ud when Bndgeton came op, and i
to draw my lord Strath more' i hw
LI, my lord turned bim about, and
Ion aaide, and made tome tte^S to
haTcn, who would be at that (irae
eight ells from my lord; and he
lord endeavour to take Fiuhaven
when they roet, and in a little all
he did tee my lord withdraw himse
the rest of the company, and sa
down his breeches, and (ifl up hii
heard him say be had got a woui
pealed llieie words three titoes, ai
pat op hia shirt, ond in a sliorl tin
taw Riy lord fall lo the ffrouiid. A<
lerrogale, ifbe taw Finlia*en the f
a thrust at niy lord Slralhmurc ivii
Deponed, he did not tee him maki
but al that time did see no other s
but Finhaven's ; and after uiy Ion
taw several other twords drawn.
That there was no other compai
with my lord but uiy lord Ro^el
OHO brother Mr. Thomas, bcfure lb:
and Finliareu eame up : AoA tliai
this that be has deponed U[H)D, fr
abop-door, which was about teveii i
dikiance from that port of tlic si
my lord Siraibmore wa* standin";.
ioierro^Ie, if he knowt n hat cam
ton, after he came up to my lord \
That he knew not wliat bccume a
ader my lord put him aside : \i
wat at much day-light s« he could
has deponed upon : And that F
naanel wo* in boutt ; aud Ihal he
fast up after Bridgelon, but Brii
flitter lotiards my lord ; and thai v
Strathmore felt, he saw Thomiu .
man, lake up my lord from the i
saw no other body assisting. ]
taw the piinnel't sword tttisled oul
bv Sir. Thomas, or my lord Ri
which of I hem, he koon's not;
was after my lord fell. And depoi
. did see the »ound in my lopj't b
I below the navel; and that it iv
Deponed, Tlial he taw Finhavc
iword wat twitted out of hit band

Fiabaveii fell in tbe Ktiiler ; and be taw a
▼ant of the ilcceucd earl of Strathmore help
Finhaven up out of the (^Herj awd when

JeTy; but that Bridgctoo comii^f up

ftaler ikaa Finhaven, he taw Bridgetun offer
••4M>BjlotdbinibBan'iiwatdi bMdw

And thia ia tbe tratk •* he ihoul

U«d. noBLrr I

Ad. Coci

Xal*, Thtynemttta for the p
Oaefsn pwgtDg) olgcctad to ^ i

\Si} finieiiimltrB/lheEarlqfStratlaion. A. D. 17«S.

[13S

^M HrftaM, why he oi^ht out to be k I Bridsetoo riUiliDg tM[elb«r near Is the Mj
■■Miitbiieue-, beciuM, •ince hit citation Aui'literhonu berbdginf; and mi ontherc-

ke km left to ibe cuiwilenlwu of

•IWllclbBkedGiid^he had now an opuor-

aM ku| bin, and would dO it if bo
' U tMog iheae cxptMHOo* were
Mf (HNS igaiiiit him, by two coQcurring
vHMkia MeoM of the court and jury,
taABN^lM aune niKht be lo luarkM in
iiWi(f aOMtmal. Whicli, and iliii de-

t."'

laif hrd RiatkiU, Bo)«nnly aworD, pDrt^ed,
hWhJ inlerroirate, depooH, (beinrin-
■Wnh- the paonel) That the time libeled,
fcfamU «n tltK Kccnioo of ■ borying, wai
iMliieMnpaay with the decnsol carl of
HMir, the pnonpl, and olb?r« ; and loge-
■iifdiwd in Mr. Cirncfrii! nf Loun*a
Ip^ mt after dioDcr and the burying was
"^rj Iweiher w*ot to the haiue of Mr,
l,titA ofPor^, where t)iejr conttDUfd
(MMdenble lime, drinking a gUw of
and after tfiej letl that hooK,
in the hooae of my lady Aocb-
in the same low 0, the panncFi Bitter,
I deceased Eari had g«De to make a
k Dffwneil, That during all (bat day. and
Itwreral nlicei where tlic deceannl Eari,
iMad, and tbe reat of the company were,
jitdrponent, ohaFrred nothing but grent
inaadfrimdahip betwixt the deceaaed Earl
lit iianiiel. Deponed, That before Ihey
nam the lady Auchterbouie'a, the
la|ipeared lo iIig df|inDeDt tu be drunk,
I br gune in drink, to tbe degree of

tiirii;; and he ubs erred the pa unci
plrutifully ill thc&e several houcea. De-
ll. That he the di'poucni, during the time
bbrin^with the said compaov, wanmoatlv
Htd ID con venial ion with the ileceiMd Earl,
■ bd not the occakinn to oLierre vvliat

Biri in convcrSBliuu bctwJNt the poiincl aud
Lyno of IJridt^tun : iinil beiug interrogate
■ ahat be knew of ilie char.ieler and
^a of the pauoul ? Deiwned, That, ac-
Meg to ilto ilrpaurnt'it kuowlcdgo of him,
U bail bi'i'ii of Uing cnntin nance, aud |>ar-
iag to tlie characler Im the

RMdWein the country, be waa thought
taaite ftiarrelmnie in lii^ temper, but lo be
ll peacriitilc and t;n<id dispomtiou. Causa
tMtipultt. And ilii« na»tlie Iruih as I
nld unvrt lo God. Rosehill.

D. EasKiNG.

ViUiaai Dmi;lai, lawful aon to William

^(lu, )a1e proTOft nod chirurgeon-apolhe-

4n Forfar, solemnly utrnrn, purged, en-

M, and intarroifite tor the pursuen, De-

^d. That on that day wher^un the deceait

if litnthmore wan woumled, he the dppo-

*aa at Forfar, and on the itreels, wlicrt

4 tee ibe Earl with my lord llmchill and

n. Lyon bi« brother, and at the aaiiiE

aAer lookinir about, ba obeerred FinbuTm
leaning and falling backwardi into a keonel i
-~ I alter getting oitt of it, which he anppared
the deponent to do very ioon, he drew Ilia
award, and with it went up to the oonpany
where the Earl, Bridgeton, and the real were i
and at tbe flnt aight, upnn the patutel'a m>
proachiog to ilie Earl, Bridgeton and Ik
reft, Bridgeton was then inlerposed bclwist
the Earl and the pannel ; but all of a auiMea
and a clap, the Earl came to be interpovad
betwikt Bridgeton and the punuel ; and i|t lli*
time iif the aaid Earl's in terpnaiiion, tliepaond
was within the length of bin anord at the plac«
where Bridgeton was atanding ', that ii to lay,
had been atanding. Deponed, That he did o»>
aerre tbe pannet make a thrust with hii aword,
and at the time of to duing, the Earl wai ataod-
iug next tbe paonel, and hit face lowarda bin.
Deponed, That the Ear) teceired a wouod in
hit belly, and aJUr receir iug it, heaaw him poll
hii ahirt from under bi« breecbet, aud at thn
same lime taw him blooding, and toon tbere-
after hit lordship tell down, anil be heard
him say, that he hail got it ; and before th*
Earl fell, and while he waa upon the ground,
he did otwerre his brother Mr. Thoma*, with
hi« drawn swori), twist Finhateo'i tnord oot
of his band, after seeing and hearing aoDM
clashing of tlieir swordt : but tt the time when
Finliaven made tbe piuh,a* taidis,heabserTcd
no other aword drawn but Fiiibareo'i ; and at
the time when thepinocl recorered liislhrilil,
the pannel aod the Earl were vrry near aneaiH><
ther : and all this time, the dejiooeDt waa
about the length of this room, or tome more,
distant from the said Uarl aod the pannel,
whose aides were oppmite to the deponent; nod
aRcr the earl uf Strathmnra's I'all, and that liit
bnither Mr. Tliomas twilled the sirord out of
the pannel's hand, the iiauDtl, who waa in
lioots, ran towards bis si»tf i 's dnnr : uftcr the
deceived Euil was carried Ut a house, and bia
wuuoil WHS driDl, he heard his lontship say,
th^tuHer the sword eniNcil hit helly, he tho
pannel gave it a second thrust. Dejuined, That
when he observed Finharen liiiliug into tho
piHldle, at ahnvehuiil, there was none stauding
with biinor by liim NutMr, LyouorBHilgeton,
And wlint he lias above ilepoucd, hsppened on
ibcQibday of May last, alwiit the hour of nine
id niglit. CuM(t i;ci«ari.r^<ifef. And this hm
truth as he should answer lo <iud.

^ViLL. nouci.a*.
1>A. Erskine.

AndrtK Douglai, alto lawful son to the aaid
William Douglas, iiultmn1y8iTurn,pui\:ed,exa-
miiii'd and Inti^rrogate, Uipo'iPil.'l'hat the lim*
Mid p lure libelled, thedi'|>ciiii-[ii taw JoboLyon
ul Uriil:;('ioD push the |iBniie! upon tlie breatl,
whereby the puniicl tell ioihe gulter.which tbs
deponent ajiprehendril would have taken liim
up to the kui«i that it Has a very natty

!■ nkiinrt Finharcawd Air. Lyon of gutter; and that lit utr tbe punel uiatoot

1S9]

? GEORGE II.

7'rial qfJamet Cartiegie,

«iriIieffiiUer, ■«(! immeiliately drBwhiaiword, |
by vbicli lime BridKeioti tris walking' off
towards my lord Slralbmora and Dthen, who
were ikiDdTng u|ii)ii the atrecl ftbnul ttie diMmce
of tiie length of lhi« Toom fivm the forefaid i

? utter : and drponed, That be fullowed at\er I
inharen immixtiBlely, after ataudintr a little i
while with bin comrades; and llint before the
tfeiMBeat came up to the place wbere my lord
SUBthmoreaml the other genllemni were stand-
ing', my lord Stnthmore h^id tkllen upon the
streeL Am) tbe de)>onant being nslced, how
■oon that ba|^ned f De|>ODed, That it was
in ■ moment ; and that wbco the deponent
«ame up as atbresaid, he raw Mr. Thomaa I.yon
and FiohaTcn eoeaged, and making panes at
each other with their rirairn awotds ; which the
deponent explainol to be odIv a clashing with
their awords ; and that Mr, Thomas Ijyon did
1 twist the sword out of Finbaren'a

pattt. And this was tlie truth as he abould
snswei In Giid. Anorew Douaua.

And. Fletcueb.

John Fefricr,mideBter ID Forrar, solemnly
nrom, purged, examined and interrogate, de-

Ened, That at the time and place hbeRed, the
pcnent baTtnc occasioD to go to water bia
master'! horse, ne mw Bridgetou and the peU'

Li they came out from tbe lady Auctiter-
nouse's tod^ng, about the briilee^une near
the shambles, and there heard Bridgeton say
to the jiaunel. You mnst gi*e me an answer to
my queaiion, which tlieileponent beard was. If
the pannel would give his iJaugliter to the lord
Rowhill? And upon the psnuel'a saying. Ho ;
Briil^ton asked nim, If he would drink a bot'
tie ot wine, and if he would drink the king's
health ? And u]Kin the panuel'a refusing to do
either, the deponent saw Bridgeton take hold cf
the pannel by tlie breast, and Tioleotly push him
into the kennel; and heard Bridgeton at the same
lime, saj. Go, and In damned, and your king
George, whom you love so well. And thereatter
Bridtieton walked towards mv lord Brrallmiore,
Hr. Thomas LyoD, and my lonl llotebill, who
were standing upon the street at aonie little
distance ; and that Finhsren was helprd out of
the gutter by a footman of my lord Stratb-
toore's: and that upon the pannel's getting
unon the streets again, he immediately drew
his sword, and ran up the street afler Bridge-
ton ; and before Bridgeton had come the length
of the place where the lord Stratiimore and
otiiers were standing, he looked over his shoul-
der, and seeing FiribaTeii following him in
manner abore mentioned, be run up to my lord
Strathmore, who, and the rest of the company,
had still their backs tiimeil to the place from
whence Fiohaf en and Bridgeton were coming :
•nd that Bridgeton, upon his coming up to
6tralhmoTe,laid hold upon my ktid Siralhronre's
•word, and eadeafoiired lo pull it onl ; upon
wUeh my lord Sintliiiiore latniug aboul pushed

Bridgeton off, and in tbe mean time FlohaTa
made a pnsh with his swoni at Brii%pton, aw
at that instant he obaerred my lord ^atbmon
pnshing Bridgeton aside, and make a step to
wards Finha*en ; and obserred at aame IIm
Finhaven, going on with his piMh, to Msgm
liirwarO with the thrust upon my lord HtrSm
more ; and thereafter thu company west a]
through other, sn that the deponent could iM
see where the thrust landed : and »ery sooi
thereafter the deponent saw Mr. Thomas I^ol
with bis sword ra' Finharen's sword out of U
hand, which lighted at a good distance upa
the street: u|)On which FinbaTcn runoff, Mif
gering, towards the lady Auclilerbouse's ittf-
iug, and bad almost fallen upon the atreel |^
lbr« hegot inattiiegate ; and much abontthl
aame time the deponent aaw the earl of Stntb<
more fall down uiion the street, and al\erinidi
carried off, and that Thomas Adam and JuM
Binnie wet« (ho first that came to his assirt
ance. Deponed, That the kenoet was dasf
and dirty, and that the panuel itas deep in i^
but not treely covered : that when he»Tosa,Kl
face wBsalmost as Uack as his black coat ; ui
that while tbes* things past, the deponent wM
riding upon the side of the street, betwixt Ikl
gutter and the place where the earl of Stralb<
more and othera were standing ; and upon sM>
ing the b^iuuiog of this accident, he stoppri
his horses little, till ha saw naalmve-menliuDci
Couio scientiie palet. And this was the truth M
he should answer to God. John FEiiaitR.
And. Fleti^ueb.
David Barclay, lawful son to Dntid Bardif)
brewer in Forfar, solemnly sworn, purged, ^
amincd and interrogate. Deponed, That attbl
time and place libelled he saw Bridgeton put!
the pannel into a gutter, oud saw a serraal
raise bim outof the gutter : and when ihn pal-
nrlgotlo the street, he saw him draw his sword,
and go towards the rest of lljc company, an4
Bridgeton was beyond the earl of Stmthmor^
his brother and lord Rosehill, who were inter-
lerpoBed belwiiLt llie jiannel anit BridgeUa,
and did not see the panne] push with llM
sword, and saw a little after my lord Strait
more fall upon the street ; aod immedialdj
; aller that saw Mr. Thomas Lyon, with I
j naked aword, beat the psnnel's sword out el
his hand, and the psunel immediately nil
toward the lady Auchlerliouse's house, ad
got in at the dour. And deponed. That wbcl
Bridgeton thrust the pannel into the gutter, iIm
servant who lillud him up, aaid to Brid|;eton, n
some other serrant standing by, that be was nn-
civil, though lie was a gentleman : and iha'
what tbe deponent saw ami heard, as aforesaid
was betwixt eight and nine o'cloek of the eveO'
iug of the day tbresaid. Canto itienlitr palet
And this wa* the truth as he should answer ll
God. Di^ia BtocLnr.

y/t, Caldkkwood,

Eluahtth fimnte, anoine to Andrew Gray
bazter in Dnwlae, pelemnly sworn, pnrg<4
(xiuuncd ui iBleirroyale, daposvd, Tfauilii

W] Jbrae Murder of ihtEnrt of Strathmort. A-D. 1788. [M«

tiD uiile, tad my lonl Stntbmora bmd ulTanccd
liifciliiHliii a pnib to the panDfll, wFicreby n atep or hftlfa alep toward Fiohaven ; and tben
kdia ibc gutter, tnd irairoiaad out of it by tbey went all id kurowdtbroiigh other, and b«
ijkd not know what wa* duiofc amoDgtt them,
hit did H« hU mailer's snord ilruck out of bw

teiod place lifelled, ihe nvr John Lyon of
• * iM five a pnib to the panDfll, whereby
■ IM gutter, and iraa roiaed out of it by
it Iwi flUsifafflore'i wnaat ; and when he

Ctt Ifec ttrwi, law him drav bU anorJ, aod
ikJB Dttar BD oath, but did DOl know what
Atawkware: and then the deponent turned
kthdl,iad did not ate FiDha*eti puih with
: Ac twmL Catua Ntmli« pattt. And tliii
I TM the Inlh aa ahe ahould anawei to God :
'le could Dotwrile.

W. CtLDoatooo.

a JbrJt)p, Mnaut )o Mr. Robert Nairn,

'■fcraiaa to Nairn of Drurokilbo,

I MaalT *WOn>, purged, examined, and iuter-
NMt^taoBed, that at the time and place li-
I kb, be dU aee WiUiam Mu^lish, my lord
I IMwK^ aeiTast, take FinbaTen the pannel
! arfdw piUer,iTbeic the deponent fawbim

tl ad did aee FinhaTen dr«w hia aword after
iBont: aaddidbearoneoftheKentiemeD,
■iii|in tbe place where my lord si rath more
^Hmded, call out to Fin1iB*en, Stand off,
#}Hda1illleBpaeetfaereaflerhesaw the dc-
■Mdaait of Strathmoretakennp, Coniii ici-
atgfaltt. And tilie ia tbe truth ai bcBbouid
MiB IB God ; and deponed he could not
wAn W*. Pmssle.

Jma Barrie, lerranl to Jamea Carnegie of
^ImB, aolennly sworn, pui^;ed, examined,
M istampte, deponed, That at klie time and
|lMe kkeUed, the depnnent «(m hoUling hia
■Mar'a borara upon ihc slrrrls of Fcrfar, ntar
kihekdj Anrhierbousit's tud^ng: tliat he
Wacea weaaid earl ofStratbiuore, and other
cajaD]' witli him, ki aluiiir ilte Klrcet froiii
<fecuai iDdgioir, knil Ijis niiutcrand llrjitfjclua
IJkfii It a little distnucc ; beard tbcin coii-
■wnaf together, and iboiiKiit tliat Itrid^eliOi
MiiiJ ■imjI.c angry at Wii ma«lcr, a.tid dv-
■•Miliat he ahiiuld give him au answer;
Hmn will liear what liiv iiinklcr said, c.TcepI
Am wwdi. That be inteiidnl lo be of ihat re-
alitioo ttill : whcrriijion Ktidgcioo with his
tn hand*, puiheil his mnslcr into the giiUt.'r,
i> ibc nme lime exprL-ntng himself. Go liv
hma'i, and lt( thai man take liitii up tor whom
kehadu great a farimr. And (he dqwiii-iit
■Mg hit iDMter lytntr in the gutler, quit liii
Wk*, and came li) relici* him, but luund tlint
■j k(J Ijtrathmorc's scrranl had lidpcd liiin
MnWfure he cjmc.and then be did sec his
■Wtr draw Km anord, and go nrrlly fast fur-
inl. flaggcring, and Esying, riiis cannot bb
Mend; ibcii hiimaoteruimeup tulhecom-

Cj. and saw bim make a puili at I)riil[;eton ',
tLar klurr hi« muter came u]i to llicm, he
M we Brldtri'*'!" malic an allcmpt tn draw my
hrilkiathiDorc's iirord ; und as Ilridgcton tvad
9t^ lowatti ni_* lord .Siraihmore, be did six
Mjelnn louk "Tcr hitiibnulilcr lo Finliafcn,
MLnklatitbe had hecnlautjhinK. OWrnd,
hi vIwd his master madi' tlie pu^li, nii iH't^ire-
kaaiucd, be Mcmcd a* if lie had beun filling,
■(■w bim cloae upon lord Stralbm<>ie; bui
Uh lliii^ my iapl ittialhuiore kud put lliiJ^-

band by another swoid, and then did aee hia
— 'nr go down ta hii aister'a lodging. De-
yoned, that aj hia master was thrown upon the
back iu tbe gutter, and was covered near oref
the belly, and saw hia face all bespattered witk
Jirt, and aaw the mire run out of fail boot- tops
uabe went up theslreet ; and deponed hii mas-
ter at that time was very drunk. Being inter-
rogate further, deponed, Tliat hehasfreiioently
feet) his master drink, and propose the deceaaed
earl ofStralbmore's health at his table, and ihia
A short time before tbe unlacky accident liap-
pene«I. Deponed, that about a manlh before,
the [ate earl and hia master was tocher at
Bnmside't burial, and heard the Earl iDvite his
inasIertohiBiiouBe,Bnd beard bim aniwer, That
lie intended ihot very soon. Deponed, that bis
master rode with pistols that day, but deponed
there was not so much as a stone in tbem*
Deponed, that ai^tit or ten days before tbie un-
tnctcy accident, his master bid the deponent g*
m the taylor, and get his clothes ready, for be
intended aa soon aa he got bia chaiaa borne, to
go with his lady and make a Tiail to my lord
tttratbmore at Glaromis. Cavia leienti* patet.
And this is tbe truth at lie ahould answer t»
Ood. JiMEs Buuua.

W*. Pbikols.
Eluahth Vilant, lerraDl to Margaret Car-
D^c, relict of tlie deceost Air. Patrick Lyon,
of AuchlerhouEe, solemnly' sworn, purged, exa-
mintil and interrogate, (le|H)iif J, Thai, on the
<>ili I.!' Slay last, slie did sec my lord Slrath-
murc Btid t iiihaven in (be lady Auclilerhouse'c
lion^'e, anil did see nor hear iioihing pasa be-
tween them but what was kind and civil ; and
slie wa6 much of the time in tlio mom before
I)rid''eton came iu : but at\er he came in, abe
M-ns but ciimiug and going; and when mj
U-Iy railed for a glitsitof bruiidy, Iho de|)onent
brou[;ht it in, ami luv lady set it by, uid saw
nobody drink il, and I'hst mv lady tuM in tbe
cnmpBny, That Urid|(cton liad taki^n her by
ivriat, and that Khc bnd not been so ill usM
ly man, and complained uf pain. And

Ctiuia irientia pattt.
she shotild answer !•

de[Kined, that that allevi

Al>. CuCKDi;il!IE.

Isaifl Meik, servant to the before-named
and designee! jtlnii^aret Cnrnetlie, anlcinnly
sworn, mirged.examiucd and inlerrogale, de-
poned, Tliat in thi! evciiiui; on llie 9th of Miij
last, Finbavcn came up lo llie lady Auchlcr-
bouse's house, ami ibe donr being shut after
bim, she came ii|i srtvr into tbe said hou*e :
and she turning iiIhiuI upon sonic |)<>u pic knock'
ingat the door, and opniin:; the B:ime, there
CBmc in tiro nr three luthU'inen or (;eutlemrii
«iili drpwu sHords ; and I'inbaTen tieiug Ibta

147J 2 GEORGE II. Trial of James Carnegie,

till tbeir bodies were close together. Deponed, but she said n6, for it did appear to l

That Bridgeton is a good deal taller than my not want it, fur be was then ?ery dri

lord Strathmorewas: and that my lord Stratli- that Bridgeton took her the deponeo

more wore a fair wig, and Brid^eton wore a wrist, and squeezed it bard, and said

black one usually. Causa scientue valet. And be no difficulty to break it ; and di

ibis is truth as he shoald answer to God. same time, Bridgeton took Finharei

Tug. Cbichton. arm, and struck bis band down to '

And. Fletcher. and said, Will ye not agree to gire one

T^ r I Twr jj i L*- ^rkj daughters to Itosehill ? And Bridsfeto

Dr. John Wcddcrburn, physicuin m Dundee. ^^"^ ,f ,,^ ^^ ^ ^J-^, j

solemnly sworn, purcBd, examined and mterro- refuiedhimoneofhisdaughte;*,hewc

gate, depon^, T^atTie wsb ca"ed to wait on ^- ^j ^^^ thatshooE his hand <

the earl of Strathmore, when he reoeired the a«*i *i««rt«oj .h^ i^.^... l..^., ^^^ u^,

wound upon the 9tb of Ma^ last; and the de- broUierrtn^q^

ppnent saw him uert morniiy «riy ; w^^^^ And this Is the truth as she si

▼lewmg the wound, it appeared to the depo- ^^^^ ^^ ^^ Maroaret Cai

nent to have been given by a three-cornered ' *•> r>/^^.rnrtB^

sword, which had entered about three inches ^'^* i^ocKBURN

above the navel, and went out in the back on Dr. John Kinloch^ nhysician in Du

tb^ left-side, some inches from the back-bone, lemnly sworn, purgeo, examined am

and about two inches lower than where it had ffate, utftipra,aeponed,Tbatontbe9l

entered ; and the wound was to the deponent's last, after Lours's daughter's burial,

apprehension mortal ; and accordingly the earl nent was in clerk Dicluon's house in 1

of Strathmore died of that wound upon Saturday a room with the pannel, who asked t

night, about two davs after he had received it ; nent, if he would go into another rooi

and the deponent thereafter saw the defunct the earl of Strathmore was, to see his I

•pened, whereby it appeared, that the weapon and accordingly they went into the ro€

had passed through the caul, the gut colon, and the Earl was, and stayed there about

the plexus mesentericus. And deponed, that and drunk several bottles of wine toget

the defunct told him, that he bad an impres- during that time he saw nothing bi

sion, that the person who gave him the wound, civilities in tlie company, without the

had, by applying his belly to the pomel of the pearanoe of quarrels. Causa scient

tword, posned it forwlird upon him. Deponed, And this is the truth as he should <

thatBndgeton is of a mncn taller stature, than God. John Kinl

my lord Strathmore if as ; and that my lord W. Caldei

^thmore usually wore a fair wig, and David Denune, sadler, in Canoni

Bridgeton a black one. Cania scientuc patet, lemnly sworn, purged, examined am

And this is the truth as he should answer to jjate, ut supra, deponed. That, in U

God. John ^ edderburne. February, or beginning of March lasi

And. Fletcher. ceased Charles earl of Strathmore, j

Dr. CharUs FolheringAame, physician in *»aven the pannel, with another ire

Dundee, solemnly sworn, pui^ged, examined '^^^o™ ^l>« deponent did not know, car

and intenrugated, deponed conform to Thomas deponent's house, called for a dram, \

Criditon, the former witness, tn omnibus, deponent served them with himself:

Causa scUnt lit patet. And this is the truth as Eari first drunk to Finhaven and his fai

be should answer to God. **>en Finhaven drunk the eari of Stni

Cha. Fotheriwguamb. ^^i>^ and his family's; and at sev<

Ad. Cockburne. times, when the Eari was not present

^ , - . «^ , « ponent saw and beard Finhaven drin

Follows the Witneswss for the Pannel's Ex- gaid eari of Slmthmore's health. ]

culpation : h^ lias hail occasion often to see Finhi

Margaret Catnegie, lady Auchterbouse, so- ^ "» company with him. and observe

lemnly sworn, purged, examined and interro^ ^ay« to be of a good temper, and no

gate, ut supra, deponed, That on the afternoon «*'««>«» to quarrels. Causa saentta pat

Sf the 9Ui of May last, the earl of StraUimore, tbis is the truth as be should answt^r t

Bridgeton, and rinhaven, were in the depo- «t*^*? ^

Dent's bouse ; she observed no manner of dif- ^* ^-ald

lierencc betwixt the earl of Strathmore and Fin- David Ogihie, son to sir John Ogil<

haven; and that the pannel and the other com- verquharnty, solemnly sworn, piir(>

pany drunk my lady Strathmore's health twice mined and interrogate, ut supra, depot

over, and the pannel tossed up the glass ; be has bad frequent occasions uf beini

during that time Bridgeton was usin^ roii|fh ! pany with the pannel, and has oft- tin

expretsioos to the pannel» and was taking him ! aim testify 'his respect and regard foi
by the breast, and verv rude to biro ; and that ; earl of Strathmore, by naming and dr

viieD a|rlassof brandy was brought, she de- i his heahh; and particulariy did bear hii

•ired Bndgeton to take a dram» and be desuned | bis own house; in the month of Marcl

ll fboiild be giYCD to FmhafcOt ber hraUicr ; ■ list, when the deponent ^ae visiuog h

firtiie Murder nftht Earl of Sirathnure.

■r,<Jkcw him drink botb to the EifI'b
miik mmtco'a. Deponed, Thai for
ktiirfear ynra pAxt, he hui beeiiiu-
}j HMuina with tho psnurl, tind ob-
Munn to be of a goei am) peact)-
fff;tMlbechar«cterLea1wayi heirtl
ti Um couDliy, »u, That he was
M^leand good temper, and uo waja
■t. Caiua Kienlmpattt. Andthii
rt n be •faould aiuwer to God.

David Ooilvie.

Dl. EUKIKB.

A. D. 17S8. [!.W

aqd Mine liaen* of bu «ini to put on, at
leattthe coat was hi* own, vrhieb he helped to
pnt 00 him, and to wuh aod clean hit face.'
The deponent tpnke to him aaiiably to the oc-
casion of his villi, both in mperi tobndrunlc-
enoeu, *nd what wan tiubtiihed atHroad lie iiad
enminiUed upon the earl of Strathmore, by
giviafK him a wouad ; upon heariniC whereof,
and tbe depooeot further iaviny, Tliat he iiail
to bisgreataatiaftctionbetrdtbe earl of Strath-
more praj to God lo fo^ive fainri : upon lh«
the pannS fetl into tbo greateat diaorder, toH-

l> Jfarfj'ne, mbisler of the^pd at
mnly Kivorn, pur^d, ezmnined and
', at aipra, depooed, That he the
«vii)(! had (nme affair tndo with the
«rl of Strathmore, as one of the
ibla the deponent's jiariiih, on which
I dcpODCDt went lo trail of hU tord-
boiiM of Glaminit, hut had the mia-
aiaa him ; and upon his return,
ud of the pannri, ami spnke li> him
■, Ictlins bim how be had missed my ,
deaired that the jiannel would fall
npedieni to bring either his lard- I
nc from bim, lo meet with ihe rest
ora. Upou which the pannel ad-
leponeDt once more lo wait of bis
Biiuiiniia; and t<)r hisrecommeoda-
itrodoctioD, be would write a letter
I. and acquunt him in it, that he
«rer. Aciwrdingiy the pannel did
Her to the Earl to the foresaid pur-
I ht! delifercd lo the deponenl ; and
ibe deponent did igaia t(a to Glam-
lliat tune also had the misfortune to
irdibip; upon which he ihe depo-
tfd the letter to one Mr. Greenhill,
servant ; and the meeting of the
<ldin|T upon tbe Wednei^dny there-
said Mr. Greenhill came irom his
ind ntleniled Ihe meelinfr : and de-
tt the writing of the foresaid lutler,
rin^ of it, was about the end of
hc;;inDiD^ of April last. Deponed,
Irpooent has tor these ihree years
ntiinalely acquaint with the pannel ;
: the wbule CDuise of his acqiiainl-
bserTed him always to be regular in
d of a [leaceahlc temper and disposi-
h i<i Ihd character he bears in the
Cuuu icicuftf palel. And Ibis is
a be atioald answer to God.

John Martine.

D*. Ekskinl.

«f MaztLtll, ^ ,

solemnly sworn, purgjcd, examined
tgate, ut tupra, deponed, Thai «oon
sriofStralbmore received his wound,
rat waited of bim, aod from him be
iIm prison and visited the pannel,
fiMwl in (freat disorder, and under
— iuna of drunkenness, his cluaihi
', and hi) face

...jle, and hanging his head downwards, cried
out, Good God I liave 1 woimded the earl of
Strathmore, a person for nhuiD I bad ^at
kindness, and against whom I had no deai^i 7
CoHfa tdenl'ut patet. Aud this ti ibe tnilh ■•
be should answer to God.

Ja. HaxwuxL.

Da. Ebskikb.
The Lords Jnstice Clerk and Coram isaioaerB
of Justiciaiy, ordaioed the Asuseto iodnae in-
stantly, and return their Verdict, in Ibia plsoe,
against tO' morrow at twelve o'clock, aod the
baill fifteen to be then present, «ach under tbtt
pain of law, and tbe pannel to ha carried back
to prison.

CoBU JusTicuBu, 8. D. N. Be^ lenla id
novo Sessioiua Domo Burgi do Edin-
burgh, tertio Die Hessis Augnsti, Uilto-
simoseptingenie^mo rigeaimo oetaro, per
honoiabiles Viros Adainum Coddiunieda
Urmistuun, Justiciarium Clericum ; Do-
minum Gulielroum Calderwood de Pol-
touQ, Magistrum Davidem Erskine <!«
Dun, Dominum Gualierum PrioKle de
Newhall, et Alagistrum Andreani FTctcher
de MiltouD, CnmmiiisiunBrias Justiciaria
diet. 8. D. N. Regis.

Curia legitime affirinula.

Jamet Carnegie, of Finhaven, pannel,

Indicted and accused, as in all tbe former
sederuuts.

The tbregoiog peruins who passeil upon the
Assize of the abive nannel, returned their Ver-
dict in presence of the said lords, and whereof'
the tenor follows:

Edinburgh, Ihe Bid of' Auguit, 1798.

The shore Assize haling inclosed, did chooH
sir Kniiert Dickson uf Inveresk l» be their
of the gospel chanccllur, and George Halibiirtoo of Fordel
' lobe their clerk; Ami baring considered lb*
in'liclmeiit pursurd at the inMauce nf Soranna,
cuunteksot Strathmore, anil Mr. Jameg Lyon,
brolher-german and iienrest of kin l<i the de-
ceased Charled earl of Strathmore, with con-
courst^, and at thu inttatire of Duncan Forbes,
FM). his majesty's ailrocote, for his highnnB*a
' ilerest, agaiutt Jaui«i Carnegie of FiuhaveR,

vith dirt; the deponent helped him pannel; the lords juslice-clerk and

r hia ckitbes, aud seat for a

siuneti of juMtdary tbcir iuleriocutor tbtr*-

151]

2 GEORGE II.

upon, vith the wHnetMs' depontioni aiUncfd
twT prOfin^ thereof; with tbe witneMM' dcpo-
Biljocu Mliluced for the pannel'i exculpation :
Tbey, bv plurality of roicei, fiad tbe pannel
Not Guilty. Id witoeM whereof ttiir pmenta
are subacrihed by oor naiil chancellor and okrk,
iu our namea, place, day, munlb anil year uf
God above- written.

" Ro. nirKsiN, Chancellnr.
'• (JEO. ll.AUDiiBTON, Clerk."
' TbeLordaJualice-ClerkandCommiwioners
of Juaddtry, faaTiD^ cousidered the foregoing
Verdict of Amize relnrned against Jsmes Car-
upgje, of Finhareo, pannel: They a&suilzied,
and hereby HEioilzie nim simpliciter, and dis-
Diiued, and hereby dismiis him from itie bar.
Ad, Cockbubne.

AaSTBACT OF SOM£ AcTt OF PaRLIAMBNT'

IN THB VK«Y Words op the Statutes

TRSMSELVBS, REFKKRSD TO IN THB
rOREGOING AruUMXHTS.

Jaim* 1, pari. 3, act 51, intitled, <' Of
fbrethonirhl FetoBy and chaud metla ;" ala-
tutec, " That aa loon a* any camplaJDt ii made
to Justices, ■heriffs, baillies. Sec. they iliall en-
quire diligently (i.e.) without onie laTuur, gif
Uiadeed waa done upon foretbonglit fetony,
or throw aiidden chaud mella : and 0{ it be
fomd ftirethotight felooy— the life and goods
oftbetreipaaaerlobein thekiug's will:— and
gif the treipaa* be dime of 8u<ldeu efiaud mella,
ibe parly ikaitbed shall follow, and the party
IranagreiMir defend, stler tbe coune of the old
lawa of the realm."

ilamcE 1,-pnrl. 6, act 05, intitled, "The
Uanslayer luld be punued until be be put furtb
of the Realni, or brought again to the PJace of
theHlauchter;" ((he act appointing (he ine-
Ihod of pursuit^ manslayers) statutes, " That
quhaireTer he hspjienia to be takin, that achi-
reSe, aluart, or bailie of the regality, sail send
bim to the schireSe of (he nixt schirefrdoin, the
qnbilk sail receire him, und send him (0 the
Dint suhirefTc, and swutimrth from schirefTe to
Mhireife, quhill be be put to the achirefle of the
pobire where the deede was done, and (here
■all tbe luw be miiiistred (o (be party ; and git
it be fbre(hDUght lelouy, he sail die iherefnre."

Jumes 1, pari. G, act 05, iuliiled, « Of In-
quisition of forethought Felony lo lie taken by
an Awice;"i(statutea, "That (he officiate (i.e.
ihejurlKi-s ordinary) sliali give them tlie know-
ledf^ ul an ashize, wlietlivr it be li]re( bought
ftlony, or sildJcnly duuc: and gif i( be sud-
denly dune, deruain iliem as (he law (read of
belure;— and gif it he forethought felony, —
iteuiaiD Ihein as law will."

Jamea 3, pari. 5, act 35, intitled, " Of
Slauchler, or foretJiought Felony, of Sod-
dutje, and Flying to Girili." Item, " Because
of tbe eschewing of great ilaueliter quhich Inm
baw tigtat caiumauDRiaMXtt the kia^'a Ueg**!

Trial of JmtKM Carnegie, [ISf

DOweof late, baith of foretho light felony, mat
of auddantie : and hecausa monie peraoos co^
Riit tUuch(er upon foretbeoght felaoy, in tmota'
they sail lie deiiPDded throw the inamunilw af
(he halie kirk and girth, and paMia and rrrmsiaii
insanctiiaripa; it u tbonght expedient ia tbi»
prBKul psrliameot tor (he stanching of ibo
Slid slouchten in time coming, quhaiterv
slaiicbter is committed on forethought felenf,'
and the commiiter of the said sUuchter po^w
und puUii kim in girth, for the safiie of bii
|>erson, the schireSe sail come to the ordinoTi
III places ^ubair he lie* under hia jiiriadidiia,
and in places exempt to the lords maintentf
the girth, and let them wit, that sick a ■■■
has coniinitled sick a crime, on fbrelhoi|bt
felony, "lanijuam insidiutor etpcrindustriim,"
for qubilk the law grants nut, nor learei oat
sick persona In joyis the immunities of tha
kirk. An.l the schirafle sail require tbe or-
dinar to let a knowledge be taken be an SMua
on 15 dayi, quhidder it be forethought felony,
or not : anrl if it be tbundeo foretliuught felony,
to be puniKhfd after the king's laws : and ifit
be fuundej) suddantie, to be restorid agais Ml
the freedome and imniuaiiy of balie kirkai^

James 4, pari. S, act 18, intitled, " AdmI
Manslayeritakeu or fugitive ;"slatuiea,"'lW
where any happens to he slain within (be reah%''
tbe mantlayer shall be puraued (in a certlW
manner), and wherever be happena to be over^'
lane, that tbe ichirelle tall incontinent ant
him Iu (he nixl ichireiTe, and to forth, qoUl
he be put to tbe ichirelfe of the scfaire quMM
the deed waa done ; and (here sail justice hi
iiicoD(inent dune. And gif it be furetbonglt
felony, to die therefore."

Jamea 5, pari. 4, act 23, intitled, ■' no
Haisters of the Gii1h suld make depute*, qoko
suld deliver Malefacture*, thai may not biwb
(he priviledgc thertuf ;" ststiiies, " That tlMy
should be huldrn in all time comeing, to da*
liver all committera of sUuchlir upon foro>
tliaught felony, that (lira to trjnb, and nlbcM
Iresiiai>seni that breaks the same, and may oM
biuik tbe privileilge thereof, conform to ibl
. common law sud (be act of parliament ma^
thereupon of before, to the king's official^
atktiod and desireaod tliero tounderlythelaw.**
Follow* the intire act of Charles 3, pari. 1,
I chap. 23, intitled, " Conreming the Wt-

i vetal Degreea of caiual Homicide."

" Our sovereign lord, nitli advice and con-
i sentof ilie estates of this pres'-ut parliament,
I for reniuviug uf all quektinn and doubt that inay
' arise heraatter in criminal pitrsuila for slaogh-
\ ter ; Btatulei and ordains, Tliot the rasca i(

I homicide after liillowiDg, via. casual 1 iiifc.

liomicide in lawful defence, and iiominido
conmiltad upon Ihievet and robbers bra>kia|f

bouaaa in the night ; or in case of 1 in J

(be liffie of maatprtul doficdation, or in t ho p

orimea, w of nek who

dedared rebela br coaiBl
rho asaiat owl Miad DM

Cote of Edmund Curil.

A. D. 1727.

[154

■Wtacrf nuftcrful depredators by armi, and
fe| firce 0|ipoae ibe piinuit and appreheadio^
tfihiB, wluch abalt happen to tali out in time
mmiai^t aor anv of them, shall not be punished
hf daili ; and tbat uotwithstandinfl^ of any Uws
« arts of parliament, or any practie made
himfais^ or observed in punishing of slaugh-
tv: h«thil the BWDslajer, in any of the cases
asaoilaied from any criminal pur-
' aninst him for his life, for the
r, before any jud|fe criminal with-

JiiifHsginna, Providing always, That in
AfCHtsf hooaicide casual, and of homicide
lotwithstanding that the slayer is

by this act free from capital pmsishment ; yet
it shall be leisum to the criminal judge, with
advice of the council, to fine in his means,
to the use of the dehinct*s wife and baimf, or
nearest of kin, or to imprison him. And hb
majesty, with advice foresaid declares, that all
decisions given coiiibrm to this act, since the
13th of February, 1649 years, shall be as suffi-
cient to secure all parties interested, as if thia
present act had lieen of that date : and thataH
cases to be deciiled by any judges of this king-
dom, in relation to casual homicide in defence^
committed at any time heretofore, shall be de-
cided as is above expressed."

470. The Case of Ed if und Curll,* Bookseller, in the KingVBench,
for publishing a Libel : 1 George II. a. d. 17^7.

Mich. Term. 1 Geo. 3.

L's Rex v. Eomuno Curll. f

Jn6BllATION exhibited by the AttomPT
against the Defendant, Edmund Curll,
Itie '* ezistens homo iniquns et scele-
M oeqiiiter machinans et intendens bonus
■Mi snfaditonim hujus regni corrumperc et
dMsl iMi|nitiani inducere, quendam tnrpem,
bpMi et obscoeoum libellnni, intitulat Venus
is a Ckyster, or. The Nun in her Smock, im-
■r^niter impressit ct publicavit, ac impri-
■t poUjcari causaTit," (sett I u^ forth tlie
I lewd uassageft) **in malum exem-
,** &c. atko of this the defendant was found

Trinity Torm last, it was moved in
ivfjodgineothy Mr. Marsh, that huwever
' ml may lie punishable fui* this in the
Conrt as an offence *' contra honos
vet it cannot be a libel for which he is
in the Tcmi)oral Court. Libeliu^
I a diminutiTe of the won! liber ^ and it is /i-
Je/Ztfi from its bein<7 a book, and not from the
■ttirrofits contents, in the Case De Libel-
b famous, my lord Coke says, that it must be
l^auHC the iiublic, or some pnvatc person, to be
a bbel, ami 1 do not remember ever to have
heud this opinion contradioted. Whatever
itads to corrupt the morals of the people, ousfht
ti* be censured in the Spiritual Court, to which
properly all such causes belong. What their
pcuerediDgs are I am a stranjjrer to : But for
■e u insufficient to say, I do not find any case,
■herein they were ever prohibited in such a
uDse. In the reign of king Charles 2, there

* Probably the iiotorions bookxeMcr. As to
«b<Mn,see the Duaciad. See, al^, vol. 1>,

t Nlraiige*s Reports, vol, Q, p. 7^3. See 1
IMi. t9. Nee Annett's Case, 1 niackst. 395,
%a^ Ecclesiastical Li*.v, tii. Prolaiiencss,
flialogiw 3, p. 113. See, a1<*^». Kast'tf
ef the Crown, c. 1, § I, and WUkes^s
fm publishipg the Kssay un Womuu.

was a filthy run of obscene writings, for which
we meet with no prosecution in tiie Temporal
Courts ; and since these were things not fit to
go unpunished, it is to be supposed that my lords
the bishops animadverted upon them in theii;
courts. In the case of the Queen o. R«ul,
6 Ann. B. R. there was an information for a
liltel in writini; an obscene book, called. The
Fifteen Pluuues of a Maidenhead ; and alW
conviction, it was moved in arrest of judgment,
rhat this v«as ni»t punishabli: in the Temporal
Co'Tts; and (he opinion of shief justice Holt
was so striiiig w'\i\\ the oltjection, tliat the pro-
secutor never tiiiiught fit to stir it again.

Attotnfjf General coutra. I do not observe it
is pretemlcil ihere is any other way of punibhing
the (i«:fen(iaiii : for if the S|)iritual Court had
done It, instances miglit be given ; and it is no
argument to say, we meet with no prohibitions :
such a way of argument- would constnie ihem
into all sorts of jiirisijictions. What I insist
u|M>n is, that this is an offence at common law,
as it tends to corrupt the morals of the king's
subjects, and is against the peace of the king.
Peace includes {2;ood onler and govern tneot,
and that peace may be broken in many in-
stances without an actual force. 1. If it be
an act against the coiKtitution or civil govern*
mem. 2. If it be against religion. And, 3.
If against morality.

1. Under the H'stliead, fall all the cases of
seditious words or uriiiiigs, 2 Roll. Abr. pi. S ;
Vent. *61\\Z Kelile ^*4li and the Case of the
Quern v. Bedford, Mich. \1 Ann. whose trea-
tise of Hereditary Ri^ht was held to be a libel,
though it contained no reflection upon any part
of the government.

2. It is a libel, if it reflects upon religion,,
that great basis of civil government and liberty ;
and it may be both a s|)iritual and temporal of-
fence, Cro. Jac. 4'21 ; 2 Koll. Abr. 78, pi. 2 ;
1 Venl. 293. 3 Keble (507, 021. In Tremayne's
Entries, ri26. there is v. sentence to have a
priper fixed upon the defendant's head, iiittmat-
in;^, tIi:U he had uiiered blasplieraous words,
tending to the subversion of government.

135J

1 GEORGE 11.

There U one Hall a

Pucb. 10 Adu. UeKini s. Clcndon, tberc
special rei'Jict on a libel abuul the Trinity, ind
it wu Dot made a doiihl of in that case.

S> As to tnonUilj. Ueatroying the peace nf
the gOTemiuent ; Tur j^ernracDt ii du more
than public order, wbich is muulil]'. My
lordchierjuiticeHolt uiieil lossy, Christianity
if pan dI' the lair: Andnbynol morality too?
I do not iDsiit tbat ererj iinioDral act ii ia-
tlictaUe, ancb as telliog a lie, or Ibe like : Bat
if ilisdeatriicliveof morality in eeoenl; if it
4oet, M may, affect all tbeltinga sabjectf, it
then is an ofience of a |juhlic nature. And
upon this distinction it is, that particular acttot'
fornication are not nunisbaUle m the Tem|>onl
Courla, and bsirdy houses are. In sir Charles
tSedley'a caic* it tva* said, that this eourti*

Case lifEdmuud Curtl,

the eurtos tnorum of the kins'
Hid. 16il, and U|H)n this fbundatit
been many prosecutioDS against t
obscene plays, Ihonjfh they liari
enough <o get the proceedings
juilgraent, Treniayne'a Enlri^, i
315. Lord Grey's Case, [Vol.
this Co1Ic<:lion.]— Mich. 10 Wil
Hill, the defendant nas iudiete
some obsceue poems of my lord
tending to the corruption of ;
which he nent abroad, and w
which he wouiil not havo done,
bad tbonght it no libel. The Sj
punish only iierBonal spiritual i
words ; if it is reduced to writiii|
poral offence, Salk. 553; ftlo. tiS;
iiishable as a libel. Uy lord Col
De Libeilis famosis, had nothin
acandalouB, defamatory libels.

naoD law lor aerenl mitdenieuiora againit the
kbff'a Mac«,and which vera to the great scandal
of Chmtiaiiity ; and the cattle fas, for tbat he
•hemd his nidied body in a balcony in Corent
Garden to a great multitude of people, and
there did sach things, and apcke such words,
ju. mentioning some particaUrs of hii misbe-
faarionr, as throwing davo bottles (pissed in)
vi el armit among the people^ Keble's Iteporta,
lot. 1, f. SSO. Fortescue's Reports, 99, 100.
And thii indictment was openly read to him in
court; and thejuilices told him, that notwilh-
Handing there was not then any Star-chamber,
yet they would hare him know, tbat tbe Coart
iif King's- bench was the aulot morunt of all
the king's subjects; and that it was then high
time to punish such profane actions, commilled
against all modesty, wbich were as frequent,
as if not only Cnristianity, but morality also
had been neglected. Alter be had been kept
in court by recognizance from Trinity term
to the end of MichaelniBS term, the Court
required him to tuke his trial at bar : but
being advised, he sulinitied himself to the
Court, and confesaed the indictment, 15 Car.
9, 1643. Tbe Micliadjnas term fullowiiig, the
Court considered what judgment to give; and
inasmuch as he was a gentleman of a very an-
cient family (in Kent,] and his estate incum~
bered, (not intending bis tuin, but his reforma-
tion] they fined him only 3,000 marks, and tn
be imprisoned a week without bail, and to be of
guodbebariour for three years, Sid. lliti, ul. 29.

TtSawit nf thn (.aai ■> fid anrl I in Kirnii-,-

See the Case of Wilkes, in this Collection,

flUl.

Wood (Athence p. 1 100) reporla, with evident
incorrcctueu hnwerer, tbe case of sir Charles
Sedley, as follows :

"In the montli of June, liiGS, this our au-
titer, sir Charles Bnlley, Charles lotil Buck-
fctntt (aRerwanls earl nf Miihllesex)" [more
eommonly mentioned by his title of t«rl of

Dorset! " air Thomas Ode, 4
cook's liouse at the aign of the <
street, i^ear Cnvent Garden, will
of Westminster,and being inflaDi<
liquors, they went into the baico
1o that houae, and putting down i
they eKCremeotixed in the street
done, Sedley atriiiped bimselt' na
eloquence preached blaspliemy 1
whereupon a riot being raised, (h
came very clamorous, and wouli
tbe door next the street open ; hi
dered, the preacher and his ci
pelted into their room, and the
longing thereunto were broken
being soon spread abroad, especii
natical party, wbo aggravated it i
by making II the most scandaloil
tnre, and nothing more reproach
than that ; the said company Ve
to the court of Justice in Wet
where being inilicted of a riot b
bert Hyde, lord chief justice ot
Pleas were nil fined, sir Charle
live bunilri^d pounds."

Aflcr relattnif the insolent and i
haviour of Sedley in court, Wt
thus:

" The day fur payment being
Charles desired Mr. Henry K
another gentleman, to apply the
majestv to get it off; but insteai
l>eggea tbe said sum of his majes
not abate sir Charles twn-|>ence o
" Mark," exclaims Johnson in hh
let, *■ tbe friendship of the dissoh

Sir John KereHby in his Memoi
7} indicates that at that period
highest rank and station were ii
begging from tl)« crown the estat
accused of forfeitable offences in i
their conviction : and from his ac
likely, that false a<

obtaining sudi futfeiiorca. The

i5n

forpublithittg a Lib^.

A. D. 17C'7.

[I5S

ahajrutokuknisatecbnicol word; id this sayinc* Why doirt yon go to the Spiritual

OS il mj itUMi R8 an obscene little book. Court? Which was ^^ing a false reason lor

iliiittiMcawofRrad,* there was no judg- that sudden opinion : Now it ap^iears there ia

, htt il went off upon the chief justice's do instance of the spiritual court's intermed-

" Who b libelled here ? This may be said to be
a temptation to incontinence ; and therefore
why not punishable in the ecclesiastical court f
This tends to bawdry, as well as soliciting qf
chastity ; but they do it only to get money."

Lord Forteseue, at the end of his Report,
mentions this case of the King and Curil,
'^ which" he says " was an indictment for
printing and publishing a libel, called, The
Nun in her Smock ; which contained several
bawdy expressions, but did contain no libel
against any person whatsoever : the Court gaTt
judgment against the defendant, but contrarr
to my opinion ; and I quoted this case. And,
indeed, 1 ihought it rather to be published, on
purpose to expose the Romish priests, the fa-
ther confessors, and Popish religion."

But since this case of the King v. Curll, the
Court of Kind's -bench without iiesitation ex-
ercises jurisdiction over such publications, and
over other oflences contra bonos mora^ which
are not attended with breach of the peace.

Upon an attempt (8 Geo. 8,) to move in ar-
rest of judgment in the case of Woolston, who
was oonvicteil on four informations, for his
blasphemous discourses on the miracles of our
Saviour, the Court ilcclared they would not
suffer it to be debated, whether to write against
Christianity in general, was not an offence pu-
nishable io the TemjKiral courts at common
law : it having been settled so to be, in Taylor's
case, 1 Vent« 29^; 3 Keb. 607, 621; and in
the case of the King??. Hall (see 1 Str. 416, [419,
cd. of 1781-2.]) They desired it might be
taken notice of, that they laid their stress upon
the word * general,' and did not intend to in-
clude disputes between learned men, upon par-
ticular controverted points. 2 Str. 834, [8v^0
ed. of 1781 -a]

In the case of the King against sir Francis
Blake Delaval, and others, which was a prose-
cution for a conf!piracy to transfer a female in -
font apprentice for the purpose of prostitutioni
lord MuiisiWId said : ** 1 remember a cause in
the Court of Chancery, wherein it appeared,
that a man had formerly [ipi. formally] as-
signed his wife over to another man : and lord
llardw icke directed a prosecution for that trans*
action, as lieing notoriously and grossly against
public decency and good manners. And so is
the present case. — ** It is true, that many of-
fences of the incontinent kind full properlj
under .the jurisdiction of the ecclesiastical court,
and are ap|iroprinttd to it. Hut if you except
those appropriated cases, this court [H. R.]
is the cusfoa morum of the people, and has the
superintendcncy of offences contra Ifonus mores :
and upon this ground both sir Charles Sedtry
and Curll, who had been guilty of offencr's
against good manners, were prosecuted here.'

At mmk of Soodind, bear ample testimony
ti iht fRiaknoe of practices of this sort in
tet kiipH, during the reigns of Charles the

Jlf jM. 21 Jac cap. 3, it is declared and

' Iht all commissions, grants, &c.

KMde or granted, of any grant or

• M jf *^ l*n€fit» profit or commodity, of

mf Mtee, penalty or sum of money,' that

*""-'^ te Ai bv any statute before judg-

!<V^ bio, are altogether contrary to

^ thb realm, in no wise to be put in

>• What was said by the judges in

iuMrfpnal statutes (Hil. 8 Jac. 7 Co.

VfHI mdily be believed ; that in their ex-

|9M> Mdi grants made the more violent

y "j* ptactcdiag against the subject, to

S^f^ ^ jmtice, and offence of many.

2"^'"y* lord Coke (3 Inst. 187,) < such

VnaeoKoders worthy of severe punish-

IB.-* ad to " these hunters for blood" he

mm Ijm esdamation of 31icah, •' Thev all

Mnil Ar blood, and every man huntetb his

Wbtidaih." [Our translation says, with a

'ihftecBse of the Queen against Read, 11
Ai Itf, h was held that a crime that shakes
l%bi (see l Hawk. ch. fi,) as profaoencss

■ At itage> [u to this, see stat. 3 Jac. 1, c.

a fa. is indictable ; but writinjgf an obscene
■ aoi indictable ; but punishable only in
kipnual court.

Kiaie of the Queen v. Read (Fortesc. 98,)
Misadictment for printing: a lascivious and
ftnBittel, enUtlpd, «« The Fifteen Plagues of
AHfcibead." The defendant was tried be-
kM chief justice Holt, and convicted : and
n notion io arrest of judgment, it appears,

■ jo'l^^roent was given by the whole court
ribedetefjditnt. And by Holt, C. J. '* There
iceeMa&tical courts: why may notth'uibe
■nhcd there 'f If we have no precedent we
loot punish. Shew me any precedent.''
«rU, J^ *• This is for printing bawdy stuff, ,
It reflects on no person : and a libf I utu:;t ha I
unit some particular pei'son or iic-rsons, or
kiofl die government. It is stuff not fit to
Bratjuoed publicly. If there is no remedy
the Spiritual court, it dues not follow there
M b« a remedy here. There is no law to
aiih it : I wiih there were ; but we cannot
^ law. It indeed tends to the corruption
|Md manners, but that is not sufficient for us
piMh. As to the case of sir Charles Setllcy,
■V was something more in that case than
■■ii^ bis naked body in the balcony ; lor

■ tMe was tfvod vi et arm'u he pisseil down '

a Ike people's heads." And he cited lady
ek's case, which was in llie Star-cham-
<^*bcre tfae^ " quashed the indictment be-
"^ ■" lor Batters of bawdry." Holt.

159] 1 GEORGE U. Case of Edmund CurlL

dliogr, wliere it it reduced to writings, or in Sedlej's'caie, who only expowd bimtdf

print. people then present, [nalced,] who might

Chief Justice Roymond. I think this is a whether they would look upon him ot

case of Tery great consequence ; tliough, if it whereas this book goes all over the kin(

was not for the case of tlie Queen v. Read, 1 Drunkenness and swearing were panishi

should make no great difficulty in it Cer- tlie Spiritual Court, before the Acts '

tainly the Spiritual Court has nothing to do made them temporal ofieoces, and in '

with it, if in writing: And if it reflects on re- the jurisdiction of the Spiritual Court is \

ligioo, virtue, or morality ; if it teodsto disturb Probyn^ J. inclined this to be punii

the civil order of societv, I tliink it tB a tcm- at common law, as an otfeoce against the |

poral ofience. I do not think Ubellus is always intending to weaken the bonds of civil so

to be taken as a technical word. Would not virtue, and morality.

Trover lie *« de quodam libello" iutitulat the «„. .. . .,_ ^ ^^ - ^^^^. ^«.^„^

Fartetcue^ J. 1 own this is a great of

^^uT^aI Z^Z^iZiSuZZr^ ^^^ Generd and my^lf. 'But Curft not

irression. At common law, druokenness, or :^^ «*.„« j^i ^^ • .:„ » <.^« : *. j^i.

Kg and .wearing. we4 not puniahabte, '^^f^f^^^Z^Zli ^^^^^

andyet IdonotftodtheSpiri.«a| Coort look LlS? SaSTfcm bU^o^^ :Su5

nouce of ihem. Tbui .. but a general iohcita. ^^ .^^ ^j ^ ^

t.on of chaaUty, and not indictable. L*dyPur. « two or three aaya. they ga»e h a« then

beck's case was for procnriDir men and women _;_,-.^ „„:„:»„ 'AL, .kL 1.. . 71— Zl

to meet at her bous^. and blld not indictable. S™*'" X ^.^H ft J« „Ui^ ?K^J^

icular facte to make feu-^^I^' 'f^^P^.i*-'^

MMIIIIV40 n, m WDicn were is noiuinir in ins _■ , , ,■ „ ,k«™ ^.. »» n^...:.. .« *-ii.

*« i-i7i • ^ L • I -J » went upon, tnere was no occasion to talk I

case. A libel IB a technical word at common n^„.,,riJ, ^!c *il i- i.

i._ . —J I _..^ ._- (k^ ^.. «f >k<. rk..^« Court's being cenior morum of the king'

•^ • Bij!JS5.r.i. L^, .Wo^r« i^^- They said, if Read's case was to!

Charts SedleySi^cnhere was a for«^ of tt? ' aSN^^S S.S wi^'iSS

tbrowinc out boldes upon the people's beads. ^ ;„ jg^ ^^^^^^y^ ^ ^^ ^^„ j,^^^

HtffnoldSy J. It is much to be lamented,
if this is not punishable : 1 agree there may be This Edmund Curlt stood in the ptik

many instances, where acts of immorality are Charing- Cross, but was not pelted, or usi

of spiritual cognizance only ; but then those for being an artful, cunuiog (though w;

are particular acts, where the prosecution is fellow, he had contrivinl to have printed |

pro salute anima of the offender, and not where dispersed all about Charing- Cross, teltin

they are of a general immoral tendency ; which people, lie siood there for vindicating Um

1 take to be a reasonable distinction. Read's mory uf queen Anne ; which had such i

case is indeed a case in point : but I confess V feet on the mob, that it would have

should not have been of that opinion. Libelius dangerous even to have spoken a.

docs not ex vi terminU import defamation, but him : and when lie was taken down out

is to be governed by the epithet, which is added pillory, the mob carried him off, as it vr

to it. This is suituy worse than sir Charles triumph, to a neighbouring tavern.

Trial if WmamHaUt.

A. D. 1728.

[let

I. The Trial of William Hal^s, for forging* a Promissory

Note for 6,400/. in the Name of Thomas Gibson, esq. and

PartnerSit ^^^ f^r publishing the same as a true one, knowing

it to be false and counterfeit, at the Session of the Peace,

ad Oyer and Terminer, for the City of London, held at the

Old Bailey, before Mr. Justice Page, J and Mr. Baron Carter:

SG£OUG£ II. A. D. 1728.

December 9, 1728.

ftw. OyEZ ! Oye« ! Oyez ! All manner
vnin,lhitbaTe any thing to do at this
••rf Oyer and Terminer, holden for the
ft«LBBd<m,Bnd eaol-dclnery of Ncwgrate,
n>ftrlhf!city of London, and county of
dnwnear, and giye your attend -
^n\ Yon good mm of the ciry of
^--^MBmoDed to appear here thisdoj',
•J "e trill between our aovereign lord the
Wl vd William Hales, answer to your
piia and peril that shall coiue

Scynoari Samael Cranmer, &c.

toSSiUl^"^^*- William Hales, look
f?|Meagw. Hamnel Cranmnr

•9**9»«- My loni, I have a paper deli-

There are three worthy persons

I) We desire may be set aside.

'^Hf' Yoii know what the law isjl : if

r • ""»*)• consent they should he with-
■■^ W well.

■^Icyflcj. Wc know there Are enou^'i,

jtt jMrr. Richard Knollys.

g- S^V"*"- He is related to Mr. Gibson.

wal^«''ifccr. Prove it.

■jwa C«rkr. Pray, how is Mr. Gibson

fcrj. Diinili n jg for ^ notg ^p j^Ir, ^jij,.

kiaHLf^^i' ' ^^^^^ recommend it to Mr.
*womey. IwpuH have this trial without any

■hi ^.^"**V*^- ^^- ^^' ^^' "» 7' ^- J «««.
"^uw iwowing cases relative to the traiis-

■^ **)'<i»0«ve rise to tliis Trial.

«lr J %!."'• **»• ^^^^ »n short hand hv

• Z. V ■ ^J^^'-tWner Edition, "

JAM^'.r'*"'- "'"'t. vol.7, p. 691; and

2^^*^ Lues cf Pope, and of Havajje, as

colour of unfairness whatsoever ; and as Mr\
Gibson is concerned, if he be really a- kin, I
would advise Mr. Attorney to v\aive him.

Attomcif General^ (sir Philip Yorke.) My
lord, 1 am sure it is our desire that this trial
should proceed with all the fairness iraaj^ina*
ble ; therefore, without entering into the ques*
tion how fur Mr. Gihsou is concerned, or, if h«
is, what consequence thai may have, 1 waive
this gentleman.

Then the twelve Jnrors, who were sworn,
were counted, and their names were as fol-
low, viz.

Samuel Cranmer,
William Howard,
Thomas Swayne,
Thomas Port,
Ralph KnoY,
Cornelius Alason,

. A. 11 \u:^ ?r' *"**» »o T^o"™ ''^ncs, (book R,
i 1^ i«l!'T'' *^fy a^"^ niy 'Of** justice
^iS^ ^^"^ ^^^ ^^^^"^ ^'"^^'" ^"■

^,*ii^'*e the celebrated * Letter con-
>jy*^^Warrants, Seizure of Papers,'

• ■*■ aicribed to lord chancollf»r
to the first lord Asliburton.

John Pott,
RichanI Chauncy,
Jame^ Coulter,
Harvey S|)ragge,
Joseph Jackson,
Robert Knaplock.

CL of Arr. Crier, make proclacnatioo.
Crier. If any one can inform, &c.
ChofArr. opened the Indictment, which is
as follows, viz.

** London, ». Juratori^ pro Domino Rega
super sacranientum suuui pra>sentant, quod
Willielmus Hales, nu|K*r de London, Aurifa-
bcr, Anglic^ Goldtmith^ existens persona ma-
lorum nomiuis et famiB, ac ronversationis in*
lionestflc, ac injust^ et fraudulentf-r niachinans
et intendens quendam Tlioniam Gibson, uec-
non quosdam Johaunem Jacob et Rohiertum
Jaconib, participes ejuKdcm ThomsB Gibson,
ac diversos alios dicti homini Reyfis nunc ligeos
ct suliditos, de iiisfrnis deuariorum summis
fraudulenter et iniqub decipere et def'niudere,
septimo die Septeuibris, anno regni Domini
Georp^ii Secundi, nunc Rep^ig Matj^i.&e Britan-
niee, &c. sccundo, apud Loudon pnedict, scili-
cet, in nnrochia Ss^nrti Dunstani in Occident',
in waniri de Farringdon extra, vi et nriiiis, 6cc.
tiilso, fraiiduleiitcr, et decrptiv^ i'abricavit et
rontrafin;, ft fiibriciri rt coutralifri r ausavit,
quoddam scriptum in verbis et iiguris sequent!-
bus, videlicet,

" Aiifiu$t 27, 172R.

" I promise to pay to Geornfe Watson, esq,
or hearer, the sum of six llioitsand four hun-
dred p(»unds, at tlem-.ind, the like value recciv-*
cd. For myself and pai titers,

** Tno. GmscLN."

«* £. «, 100.

163] 2 GEOllGE II.

ad frmwe (lamniim pncfat' Tlioroft GibMn, et
pnctJicl' Joliannis Jacob et Uoberti Jacomb,
particip^itn ejusdem TliumiE Gibson, in malum
excmplum omnium aliorum in hujusmodi casu
delinqucntium, ac contra pacem dicti Domini
Itesfis, coron' et di^nitat* suas, &c. £t jura-
tores pnsdicti super sacrainentum suum prsc-
dictum ulterius praesentant, quod pr«dictus WiK
lielmus Hales neqiiiter et deceptive macbinans
et intcndens prst'at* Thomam Gibson, necnon
pncdict* Johannem Jacob ct Robertnni Jacomb,
participes ejusdcni Tbomse, ac diversos alios
subditos et lifi^eos dicti I>f»mini Re^ nunc, de
ma^nis dcnanornm sumrois fraudulentcr et ini-

aul* decipere et defraudare, postea, scilicet pne«
icto septimo die l^ptcmbris, anno secundo su-
pradicio, apud Lon4lon pnedicl', scilicet, in
parocliia et warda praedict', vi et armis, &c.
<|uodilam scriptum falso fabricaturo et coutra-
fiictum in verbis et figuris sequentibus, Tide-
licet,

« August 27, 1728.
** I promise to pay to George Watson, esq.
or bearer, the sum of six thousand four hun-
dred pmmds, at demand, the like value receiv-
ed. For myself and partners,

«» Tho. Gibson.'*

j;, 6,400.

Trial of tVaiiamHaleSt

scienter, illicit^, et fraudulenter produxit et
piiblicavit, et product ct publicari causa vit,
tanquam verum et legitimum scriptum, (dicto
Willielmo Hales adtunc et ibidem beu^ sciente
scriptum ult' mentionat' per ipsum Willielmum
Hales sic ut preef'ertur product' et publicat',
falso fabricat' et contrafact* fniasc) ad grave
damnum pncfat' Thorns Gibson, ct praedict'
Johannis Jacob ct lloberti Jacomb, participum
igusdcin Thomtc, in malum exemplum omnium
aliorum in hujusmodi casu delinquenlium, ac
contra pacem dicti Domini Regis nunc, coron'
•t dignitat' suas, &c. Et jnratores praedicti
super sacrameutum suum nrtcriuit pnesentant,
<|uod prtcdictus Willlelmus Hales niachinaus et
fraudulenter inteudens prcpfat' Thomam Gilison,
occnon precdict' Johannem Jacob et Robertum
Jacomb, participes ejusdem Tliomie Gibson,
ac diversos alios dicti Domini Regis nunc
•ubditos, de magnis denariorum sunimis frau-
dulenter et iniqu^ decipere et defraudare,
preedicto septrmo dieSeptembris, anno secundo
•upradirto, apud London predict', scilicet, in
parocbid et wardft pnedict', vi et armis, &c.
ialso, fraudulenter, et deceptive fabricavit et
contrafecit, et fabricari et contrafieri causa vit,
quoddam scriptum gerens tfat' vicesimo sep-
timo die Augusti, anno Domini millesimo sep-
tingentesimo vicesimo octavo, in se purportans,
quod pnedictus Thomas Gibson pro seipso et
participibus promisit solvere Geor^^io Watson,
arm', aut latori, summam sex mille quadrin-
gent' librarum, super demand', consimili valore
recept' ad grave damnum pnefat' Thomas
Gibson, et predict' Johannis Jacob ct Robcrti
Jacomb, participum ejusdem Thomee Gibson,
in malum exemplum omnium aliorum in hu-
jiitmodi otia deuo^aeotiuiDy ac contra pacem

dicti I>omini Regis, coron' et dignitat'
&c. Et iuratores prseiHcti super sacram(
suum ulterias prsesentant, quod pmM^
Willielmos Hales nequiter et deceptive vdm^^
nans et intendens prsfat' Thomam GibsOB^
prsedict' Johannem Jacob et Roberium JaooiP
participes ejusdem Thomoe Gibson, ac divei^
alios subditos dicti Domini R^s nane, ftufl
dulenter et injust^ decipere et defrandmd
magnis denanorum summis, postea, feilte
pruraicto septimo die Septenbris, anno aecadfl
supradicto, apnd London pnedict', adliceti i
parochi^ et warda pnedict', vi et armis, ta
quoddam scriptum falso fabricat' et conlrafad'
gerens dat' vicesimo septimo die Anguiti, hh
Domini millesimo septingentesimo vienM
octavo, in ae purportans, qaod predictos TW
mas Gibson pro] seipso et participiboa proairi
solvere Gcorgio Watson, Ann , aat latffl
summam sex mille ^uadringent' librarM
super tfemand', consimili valore recept',ad6aM
illicit^, -et fraudulenter produxit et publioaril^l
produci et publicari causavit, tanquam TcnM
et legilimum scriptum, (prefato Willielai
Hales adtunc et ibidem bene sciente tcriplHj
ull' mentionat', per ipsum.Willielmum HaMt d
ut procfertur product' et publicat', falso fabrioil
ft contrafact' fuisse) ad grave damnum praM
Thomee Gibson, et prsefat' Johannis Jam ■
Roberti Jacomb, participum ipsius ThdM
Gibson, in malum et pemiciosum exemphl
omnium aliorum in consimili casu drlinqnia
tium, ac contra pacem dicti Domini K^
nunc, coron' ct dignitat* suas," &c.

N. B. This Indictment vras found
the commission of Oyer and Termioer, wk
not U|K)n the gaol delivery.

CI. of Arr, Upon this indictment tha 4e
fendant hath been arraigned and pleaded Ni
Guilty ; and for his trial he puts himself opM
God and his country, ivhich country yoniM^

Your charge is to inquire, &c.

Mr. Strange. May it please your lordship
and you gentlemen of the jury ; this is an in
dictment against William Hales, of LondM
The indictment sets forth, that he being <
person of ill fame and reputation, and intendin|
to deceive and defraud Thomas Gibson, Join
Jacob, Robert Jacomb, and divers others, did
on the 7th of September, forge and coantcrftil
and caused to be forged and counterfeitcNl, i
certain note, viz. <* August 27, 1728. I pn
mise to pay," Sec, This is laid to be to tb
great damage of the said Thomas Gilison, Ba
and to the e?il example of others in like cai
offending, against his majesty's peace, &c. 1
sets forth, tliat, from the same evil intentioai
he did produce and publish, and caused to h
produced and pnblished, a certain note follow
mg, viz. <* August 27, 172B, I promise to pay,'
&c. That he published this as a true aw
lawful writing, knowing the same to be hha
forged, and counterfeit, it sets forth, tlnit k
forged and counterfeited, and caused to tn
forged and counterfeited^ a certain wiiiim

for a Misdemeanor.

■pHl f7| 17 S8, piirportins^ that the
I Ihomu GUmoo, for himstflf and
, pmiMed to pay Georf^e Watson, or
Moot GeDtleneo, the indictment sets
In on the same 7tli of September,
dly,tbe said William Hales did pro-
d ctoMd to be produced, a writini^,
fiipted that the said Tliomas Gibson
MMd to pay Geunre W^atson, or
,§0X>1, and published this, knowing it
iifid at the same time. And this is
i to the great damajire of the said
»Gib«Hi, &c. and to the evil example
icn io like case oflTendini;-. To this
iithe bath pleaded Not Guilty. But
live the fact, it becomes your duty to
bin thereof.

tOL May it please your lordship, and
iemen of the jury ; 1 am of eouoael in
for the king. The Charge against
^t Mr. William Hales, is for forg-
e in llie name of Mr. Gibson, pavable
t Watson, esq. or bearer, for no less a
6,400/. and publishing this note as a
knowing it to be false and counter-
though the fact is laid different ways
lictment, yet it is upon one and the
^f and the difference consists only in
»f alleging it.

eotlemeu, is the first case of the most
lary scene of forgery that hath come
unioation in this place, committed in
anoer, and attended with such cir-
ei , as make it necessary to be prose-
b the greatest weight and solemnity,
imple and terror to others. AW kinds
' are crimes of a most pernicious oa-
bey tend to weaken and destroy that
commerce which ought to he main-
oDgst men : but forgery in the case
able notes, which have a particular
giren to them hy act of parliament,
priTate credit is greatly assistetl, and
ied no, is one of the most dangerous ;
t should prevail, the consequences,
ot eiisy to be foreseen, would certainly
ive and destructive. 8uch is the na-
le offence whereof the prisoner stands
bot howsoever heinous that may he,
will depend entirely u{>on the evidence
i.

men, the advantage taken to commit
ery was from an act of kindness and
one to the defendant. He some time
tiled with one Mr. Booth, book-keeper
ibsoo, to accommodate him with two
r letters franked by Mr. Gibson, in
be pretended) to send news into the
a practice which 1 fear is too com-
t 1 hope this instance will have some
nake it less frequent. It will appear
rom several circumstances, that the
ucstiqn was made on one of these
K, gentlemen, it is a promissory note,
, For myself and partners, lliomas
The body of the note ia all of one

A.D. 1728. [166

hand- writing, not pretended to be Mr. Gilison's*
When we come to the subscription, there is a
rasurc at the end of the word * for,' which,
upon holding the peper against the light in
plainly to be seen. The HiannerofMr. Gib-
son's writing being, pretty wide and loMe, tlie
letter o in the word * for appears to have been
crowded between the other two letters / and
r, and is of a remarkably different cnarac*
ter and fresher ink than the others. From
hence the manner of making the forgery seeine
to have been, by rasing out the two e's at the
end of the word * free,' or at lea&t the greatest
part of them, and inserting an o in the manner
1 have mentioned, and then ailding in the same
line, aHer this word thus made to be ' for,'
these other words, * Myself and partners ;'
which standing a little above the name, Tho.
Gil»son, serve as a proyier suliscription to this
note. It will appear likewise, that the stroke
at the beginning of the m in the word ' my' ia
of the older kind oi ink, and probably was at first
fiartof one of thee's in the word ' free.' There
is something observable in the figure and ap-
pearance of the paper itself: the ohl foidingy
which is most worn, answers to that which pro*
bably might have been the fold of a cover of a
letter, and the pa|ier is torn off at one side and
at the top.

This, gentlemen, being the nature of tlie
writing, and the manner in which it was trans-
formed from the direction of a letter to a iiote
of this value, we shall, in the next place, lar
before you the use which was matle of it. And,
gentlemen, tlie time pitched upon for this pur-
pose will lie material for your considerattoD.
Mr. Gib&oo was gone to Bath, and it was
ihougl.t proper to date the note the day U-fore
he went. No u^e was made of it till some time
afler he m as gone, tliat there might he no r<Him
for applying to tlie p« nnn himself. The day,
and lime oljhe day, which were choMru to out
it off, were Saturday at night ; when orobahty
there wou'd lie no ^ipfiortumly of riiaain:; in-
qtiiries till tli« Monday m'^rniiig loll owing, :ind
consequently a wh'4e d:iy luigUi be gairK-d.
This being 'the opiKirt'iiniy r#'s#iKi'd up«>n, it
will appear that cu Kaiarday tlie 7ih of .Sep-
tember, Mr. lUle^ made u**- of an iii*i/uff»^fi%
that hath confessed himv-lt vt hat*- 1>«* u lin**
in hy him, one Thomas ICum*«'y, a w/»,'..r ?•*>-
low bred to the sea, who wa« a»iv>l»n*' y u-.'i^r
his influence; told him lie mi; -t fg'i w.' f tint
into the city, bid hiin pnt on a j.*-t.o. »- •**«'
of clothes.and observing th^t In- '.*i; » «-*■
hat upon his head, advised him "' ^i*'^ *7''
behind him, and gave him * p4.-. •<»- '
make him appear still Morelk*- ^ rjan •• ''••

ness, Mr. Hales, as th^ w^«
Strand, bought biin a ifr^\^' ^^
case. Tlience becaimt-: .-*<**-'""
and bought him a dark y- *'l
it on, and said, it ^

•».

equipped, he
in 8hire-laae;
Bumsey net
employed, •

teok hi*.

■/i'X *

167] S GEORGE 11.

Without the porter*! sayioflT one word, Hftles
asked, If be did not want Ruqasey P The por*
ter answered, Yes ; and pmduoed a letter di-
rected to Rumsey, which Mr. Hales took, and
readily found inclosed in it tlris note for 6,400/.
fmyalile to George Watson or bearer. In the
letter were two names written with sums
aq[ain5;t them thus, lady Harriot Elliot 4,S00/.
8ir John Hyndc Cotton 2,100/. and under-
neath, * payable to them or hearer.' These
names only being* in the letter, Mr. Hales took
upon him to order Uurasey to write under
them, < James Morcton, esq. or bearer;* and
when this was done, that part of the letter with
the names was torn off, and nut into the pocket-
book (which bad been bou^i^ht for tlie purpose),
together with the note for 6,400/. and a Bank-
note of 20/. and two of S5/. each. Then the
|>ri8oner gave it to Nr. Rumsey, with direc-
tions to carry these notes to the shop of Mr.
Snow and Poltock without Temple- bar, and
there take their cash -note payable to James
Moreton, esq. or bearer, fur 70/. the produce of
the Bank-notes ; and in exchangfc for this for^r-
ed note, to take one of their notes, payable to
the lady Harriot £lli()t, or l>earer, (or 4,300/.
and another to sir John Hynde Cotton or
bearer, for 2,100/. The prisoner gave strict
instructions to Rum^sey, that, if at Mr. Snow's
he should lie asked where he lived, he should
answer, at the upper end of Bond-street; if he
shouUI he asked hij name, he should say, Tho-
mas Fowler, or any other name besides his
true name ; thair it was indifferent what, so it
was not the right name. Rumsey, thus in-
structed, went' immediatfly to the house' of
Mr. Snow and Poltock, which Hales took care
to shew him. Mr. Poltock took the small
Bank notes, and gave his note for them ; hut
olisoryinjr the appearance of the note for 6,^00/.
that it was written on a dirty scrap of pa|>or,
and the difference of hand- writings m it, would
have notbinof to do with that. During this
time Haleti kept at a little distance ; and Rum-
sey relurninff without success, he directeil him
to go to Mr. Hoare's, and (as he had csoncerted
in the former instance) to nay in a small sum
of money not exceeding 7o/. and take their note
for it, and to (>xchauire the note of 6,400/. for
their notes. The names of the persons to whom
the notes were to be made payalilo were then to
bech;ui'3:ed ; forthestrrtlni^eni wns,to make use
of the names of i^ersons that dealt at the several
shops, in order to gain credit to the transaction.
Therefore the names of two honourable persons,
wtl! known at Mr. Hearers, wen* pitched npon;
and the new direction which the pri.sonerpfare to
J^imsey was, to take one of Mr. Hoare's notes
for 4,300/. payable to Hir Richard Grosvenor or
bearer; and another tor 2,100/. pay aide to sir
John Hynde Cotton or bearer; and there also
if he was asked to give in his name, Thomas
Fowler. When it was near dark, Rumsey
went to Mr. Hoare V, and exactly pursued hit
orders. Thcv made him oot A small note for
the casli, and gave such eredit to Mr. Gihsont
miBe, as to fg;m bim Ibe notes bf dtiired, in lies

Trial of WiUiam Hales,

of the 6,400/. note : all wliich Mr. Riunt)^ A
livered immediately to Mr. Hales, wlio ifMj
for bim at a fruit-stall not far from the sbnp.

Gentlemen, Nr. Hales beinf:^ now poiieM
of three notes of Mr. Hoare's, one fbr-fOl
another for 8,100/. and a third for 4,S0Of.lbi
next part of his scheme was to neffooiataMi
exchange them for other notes from Mfei
to hand, in order to entangle the aflfairkUd
make it difficult to trace out the cheat : Ibem
fore liis next orders to Rumsey were, t6anf
the note for 4,300/. payable to sir Rfrfaai
Grcsvenor or bearer, to 5lr. Brassey 's spd flp
changfe it for smaller notes. RunnseJ^ ml
thither that night, and took four smaller MM
of Mr. Brassey's, in lieu of Mr. UoaraVw
two of 1,000/. each, one of 1,200/. and ifi-
ther of J, 100/. But though these notes 4
Mr. Brassey's were given out on feSativdqf
Sept. 7th at night, they were made to hM
date on Mouda^r the 9tb; because, h brfjg
late in the evening, the cash-book was mm
up for that day. These four new notes Mr
Rumsey delivered to Mr. Hales, who wailnl
for him again at a very small distanoe fipsii
Mr. Brassey's -shop. •

The next part of the scheme was to chasp
these notes into negocialde securities eqnil ll
cash, in which there was probably a dsdUl
view ; partly to intricate the affair still ftitMi
and partly for the greater convenience of pa^
rying off the fruits of their iniquity, wbfi
that should become necessary: therefora IM

Itrisoner sent Rumsey to Mr. John Hah^ ■
iroker in Exchange- alley, and directed liisili
acquaint him, that he came from Mr. SsMpI
Palmer, in Mansel-street, Goodnian*s-fisNb|
with orders to buy South-Sea and India bsiii
to the value of 3,400/. against Monday mocBi
ing following.

Thus the matter rested till Monday tho OH
of Sci»tember : but on the Sunday the prisoom
was liot wanting in making his preparatioosi
He then appointed one Roliert Hall, his tayisi^
to meet him at Lloyd's coffee- hoube in Lea-
bard-street, at eiuht o'clock the next momiag,
without leitint; him into the secret of what M
was to i\o. Hall went accordinsrly, ami tbcff
foimd one Samuel Lee waiting for Mr. Hales |
nn instrument made use of by the prisoner ifl
another transaction, which wdl one day appcil
as rank a forgery as this. About niue Halsi
came, and p;ave to Hall Mr. Brassey's note
fur 1,200/. directing him at the i^ametime Iq
go and receive 050/. in guineas, and have k
indorseil off. He told Hall, that if he was
asked, he should tell them he lived in the
Hav-market, or any where else except tbs
reaf place of his dwelling, and that his uams
was John Roberts. So here is anniher shan
name and place of abode. He obeyed thess
orders, received the money, nut in gold, but m
three Bank-notes; and when the persons io
Mr. Brassey's shop enquired his name, bo
told them John Roberts. Whilst Hall was m
tbo shop, he observed that Mr. Hakes waUnd
by; 00 joiloas was be of bis agents, t»r il

for a Misdemeanor.

vifilaat to see how things succeeded,
stif ered the Baok-notes, together with
iHev*s note, on which the 650/. was
I ofll, At Ltoyd'g cofTee-honte ; and af-
• met him again at Ja new ay's cofTee-
Ib ComhUI. There llales retarned
mk- notes to Hall, and ordered him to
m Bank, and tltere recei?e the money
mi in goM. Mr. Hales was still so
or iflBpatient, that whilst Hall was at
ik icoeiving tlie moneyt he took occa-
BMDe in there a|>oo pretence of cHane*
;wiea, and taking no notice of Hall,
my ; after which Hall went with Itim
rerot and paid him the G!>0/. which he
I at tb« Bank.

emen, thus far the design succeeded
9ere are several good notes obtained,
»e cash got, without discovery: but
ision of that will arise out of the part
ftmuey was to act on the Monday

A.D. 1728.

[170

ly yon obsenre there are two notes
Iloare's behind, whereof no accmint
B yet g^iven, viz. that of 70/. and that
I/, payable to sir John Hymie Cotton,
f nrfaich Mr. Rumscy was employed.
appear, tliat Mr. Hales krpt Rumscy
Jlj with him, and lodged him in his
I Saturday and Sunday ; and on Mon*
nnngt when he went into the city,
Rurosey with him, took care to shew
'. Alderman llankey's shop, and dt-
lim to exchange tfiese two notes for
d 2,100/. for Mr. Hankey's notes.
' went to the shop, and they iiaving no
f about exchanging Mr. Ht^arc's notes,
I ti.em, and gave him two of thnr own,
1,100/. and another for 1,050/. both
to ^iainuel Pahncr or bearer ; and the
ig QOl. was paid in money. As to tlie

1,100/. the whole was rcceiveil upon
Ir. Aulerman Hankey's the same day,
•vtn wiio called himself Samuel Lane,
einen, the next part of the transaction
to tlie South Sea and India bonds for
ivhicli hail been ordered to be procured
s the broker. On Monday mornint>^
- received the money of Mr. Hales,
eclions to carry it to ilaU, and pay fur
nnusi. WliiUt Uuiuiiey was gone to

this, it appears that Mr. Hales was
is occasion also uneasy aiirl impntient,

Idiriisey st.Lye<l too long, and sent a
or hi'ii to Huls's ottice, by the name
mas Fowler ; and that Uumsey an-
to that name, and went along with the

emen, we shall next produce to you
not made U[t by Mr. Hals or Mr. (-oie
ler, which will appear to have licen
ut in these feij;;ued names, Samuel
esq. per Thomas Fowkr; whereas
I persons had any thing to do in the
ion, bnt the whole was negociated by
■d Ramsey. Aud it will oe proved,
eaever the privouer sent Rumsey apou

any of these errands, be considered the quca-
tions which were likely to be asked, and gave
him instructions how to make proper answers,
and some of them in writing.

While these things were transacting, the
accident happened that led to the disoovery.
About eleven o'clock on Monday morning, Mr.
Humphreys, a servautof Mr. Hoareandhia
partners, who carries out notes and receivee
money abroad, carried the note for 6,400/. to
Mr. Gibson's, and, Mr. Phillips the cash-
keeper being abroad, left it with Mr. Cram*
lington, another of the servants, with directiona
to pay the money upon it to Mr. Bromfield at
the Bank, who was to place it to Mr. Hoare*«
account. When Mr.. Phillips came home, ba
was surprised to find such a note with Mr.
Gibson's hand to it ; the note not of his own
writing, thouffh it is always his practice to write
the body of his notes as well as the subscrip-
,tion. And no notice having been S[iven of it
by Mr. Gikson, upon this be conceived a sus-
picion, and resolved not to pay it till be bad
lirst spoke to Mr. Jacoinb. The note was
shewn tf> Mr. Jacomb, who, upon finding out
the rasure, and observing the other circum*
stances which I at first mentioned to yon, im-
mediately suspected it to be a forgery, and took
methods for the discovery. He found out, that
one of Mr. Htare's notes had been exchanged
for Bank-notes, and traced out the numbers;
upon which notice was immediately giveu at
the Bank, that if any of those notes were
brought for payment, they should be i^topped,
and the person secured. It happened soon af-
ter this, that Mr. Hales desiguing to get tbe
remainder of the effects into his pocket, carried
Rumsey within sight of the Bank, (who was so
ib^norant a person, that he asked him whether
it u as a church) and directeil Uumsey to re*
ceive money then' on two Ijank- notes, each for
'^00/. part of the Bank-notes L^iven out by Mr.
Brassey ; and theiv upou the omeers of the Bank
stopped Uunis'^y, and enquired into the matter.
Mr. Ramsey uus first interrogated how lie
came by tliese notes ; and atler much hcsita-'
tion and dithculty, at last said, he had them
from a gentleman that stayed for him at Robin's
coAee- house in the Old Jewry. Upon this
they sent a constable, and found Mr. Hales
there, having in his hand Air. Brassey 'a uote
for 1,100/. This note he endeavoured to con-
ceal, but was prevented. They brought him
to thfr i ank,and upon search found about him
the %cry effects which were the whole produce
of Mr. Hoare's three notes, except about tlie
sum of which was wanting. He was

asked, how lie came by them, and by the note
siirned with Mr. Gilisou's name, payable to
Watson, with which he procured them. The
account he gave was, that he had them from
one Mr. Sanuiel Palmer : but he there declared^
that all the eflects that he had about him were
the produce of this note, and wrote down in a
paper how he had disnoM>d of the rest.

Ge^.tlemen, this will appear to you to be tbe
nature of tbe case i and upon this Mr. llales

171] 2 GEORGE II.

was committed, and Rumsey secured. And,
ffentleroen, I apprehend, tliat, though this be a
hmt: series of facts, yet it will amount to a clear
eTidence against the prisoner. No reasonable
man can expect proof to be made of the Tery
act of forgery. Such iniquities are deeds of
darkness, and those who commit them do not
call witnesses to attest the performance : but
next to that we have the strongest evidence.
What arises out of the note itself is of great
weight : the circumstance of the rasnre and
alterations, which 1 will not repeat : the body
•f the note not of Mr. Gibson's writing, whereas
it is his constant practice to write the whole
note with his own hand, and that too in a dif>
ferent form of expression from the present note :
there is no person of the name of George Wat-
son, with whom he hath any dealing. An-
other circumstance material to be taKen into
consideration is the immediate exchanging all
these efRfcts, without any apparent occasion.
One banker's note exchanged for another, Mr.
Hoare's, Mr. alderman Hankey's, Mr. Bras-
sev's — all of them persons of i;reat credit —
'\Vhat account can be given, witliout any rea-
son appearing, why one of these gentlemen's
notes sliould He exchanged for another, but to
darken and intricate the affair P

Add to this the considen&tion of the persons
concerned : Mr. Hales, a bankrupt not dis-
charged, employing such agents as 1 have de-
scribed to you ; himself lurking about in a con-
cealed manner ; all these circumstances shew
the man was doing a wicked thing, which
would not bear the light, nor his appearing in
it. But what amounts to a demonstration,
is his directing these agents to take upon them
feigned names and places, to dress themselves
in masquerade, and to take notes in the names
of other persons, who were absolute strangers
to the transaction.

As this is evidence of the prisoner's publish-
ing a fenced note knowingly, it is evidence
likewise that he forged it : &r, if a person huth
a forged note in his custody, and takcth such .
methods to put it off and give it a currency, it [
is a strooff proof against him of the forgery it- ;
self; and properly turns it upon the defendant i
to give a clear account h<»w he received it, upon !
what consideration, and in what way of busi- |
ness ; more especially in this ca^e, where the
note is for so great a sum of money, that no-
body can pretend to be at a loss or under any ,
difficultv to shew how they came by it.

Gentlemen, when the witnesses shall have
given you an account of these things upon their
oatlis, I apprehend there can remain no doubt
but the charge of forgery against the prisoner ;
is just, and thu prosecution necessary.

Call Philip Booth. [Who was sworn.]

Solicitor General, (Hon. Mr. Talbot,) Mr.
Booth, do yon know the prisoner at the bar,
Mr. Hales r — Booth. Yes, Sir, I do know him.

Sol. Gen. How long haTe you been ac-
quainted with him ?

Booth. Ercr since the year 1709.

Trial of WiUiam Hales,

[17i

SoL Gen. Can you remember the time— bow
was he brought up at that timeP

Booth. I remember him at the shop of sir
Stephen Evance several years before thw
failure.

SoL Gen. Do you remember any thing of t
franked letter ?

Booth. About a year and a half ago be eisi
to me, desiring me (Mr. Gibson being a men*
her of parliament, and his other friends out if
town), that I would do him the favour to give
him two franks. He brought two sheets ti
paper; I desired Mr. Gibson to frank tboii
who wrote on them, To Robert Booth, o^
Bristol. Free Tho. Gibson.

Sol. Gen. How did he write his name P

Booth. Tho. Gibson.

Sol. Gen. What did you do with them P

Booth. I gave them to Mr. WiUiam Halc&

Sol. Gen. Sir, look on that note. Are tm
acquainted with the hand of Mr. Gibson P ISee
whether you take any part of the note to beef
his hand-writing ? — ^Booth, The name is his.

Sol. Gen. Is there any other part of the noil
which vou take to be his hand- writing ?

Booth, The F I take to be part of the wori
< Free'— the F 1 take to be Mr. Gibson's band-
writing.

Sol. Gen. What is the r ? Look carefully
upon it.

Booth. The r may be Mr. Gibson's ; bat the
0 seemeth to be crowded in between the JPni
ther.

Sol. Gen. Do they seem to be of the WM
hand, or of a different one?

Booth. Crowded in irregularly.

Sol. Gen. Are they of the same ink P

Booth. I take them to be of a different ink.
The r is his letter; but I take it there is boom
alteration : here is a plain rasure, where the
letters * my' are written.

Sol, Gen. What distance from the rP

Booth. The rasure is probably where the
two c's stood.

Sol. Gen. The * mv,'and the word following,
do vou take them to be Mr. Gibson's writing?

booth. No, Sir.

Sol. Gen. Take notice of the fold.

Booth. This seems to be the fold of a letter.

Sol. Gen. If you take that to be the fold of a
letter ; Is that the usual place for the folding
of a letter?

Booth. There must be some alteration on the
left-hand corner.

Sol. Gen. Make your own oliservations.
Look on the top of it ; doth that seem the fold
of the paper as at first, or cut or torn off from
any other paper ?

"booth. I believe it is not the original fold of
the paper as it is now.

Sol. Gen. Look on that side next me ; doth
it seem cut or torn off?

Booth. Yes, it is not the original selvedge of
the paper.

Sol. Gen. Is the original selvedffe of the
paper in any other part? Is it cut imi or tiM
original fdredgcP

. n. ii«»-

■*» 9 VV<.' •■•• *'

•• 1

"UUi '*'»^^:j^'. .X isNi ,» , V.

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ft •< Hull n tM I I ti ,. ) I

4 lilhl •

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ilii- IiMm . •

h.th Ml"! II M ■ I / !|
li III • f

« / /''If Hi It f f . f >i If

von li\r<i «iiU ^It it'iUiui

tOU NiTii miy itiMi-M III liu
*«, Sir.
■ fid roiiiiitoii iiiiiiiii*ii 111

*ti -.r-V. «nil |(|»«r iiM Hi

?; i*-j it«i'i|i i» !»/»••

*" "■ V" ". •■/ I. '/I/ -, *• ^ #• •! • ■! ' J ll ■ I H I

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T \

175] 2 GEORGE II.

Soi. Oen. I ask one qaestion more ; did Mr.
Gibson e?er give franks, witbout writing bins-
■etf the superscription ?

Booth. I know not but that sometimes he

Mr. Strange, I desire he may fold Ktbus,(pro-
4meing a sheet of paper whieli he bad folded.)
This half sheet as large as yuu can: — Soppose
yov see where the name Thomas Gibson is
wrote, I enquire whether, when the direction
iras o?er it, there was room to tear off soch a
paper as this, (shewing the note) and hare none
of the direction? You see the distance from
Free Thomas Gibson to the top of the paper;
was the (biding so large, that there might be
the direction torn offhand jet this (the note)
remain?

Booth, Am I remember, it was a rerj larcre
sheet of paper, and ?erj largely fblded. This
I remember the more particularly, because
Mr. Hales hath endeaTonred the same thing
•ince, and I have some of them by me. I be-
tiere the paper was large enough that there
might be the direction torn off.

Sol, Oen, Pray, will you k)ok where Mr.
Gibson's name is wrote, and tell me whether
jou apprehend that end is torn or cot T

Booth. This was the torn end, and the other
answers exactly.

Mr. Robert Booth called and sworn.

AU, Gen, Sir, hare you ewer had any letter
kj tlie post from Mr. William Bales?

B. Booth. No, Sir ; I nerer bad any letter
from him by the general post.

4tt, Gen. Can you recollect that yon erer
bad a letter from any body, franked with the
name of Thomas Gilison ?

K. Booth, 1 never had, I am positively sure
•fthat. ^

Att, Gen, Do you live at Bristol ?

fi. Booth. Yes* Sir.

Att, Gen, Do you know of any other per-
son there of your name?

R, Booth. None at all.

Att. Gen. Pray, had you ever any letter
from Kr. Hales, either franked or otherwise?

R, Booth, No, nor ever any correspondence
with him.

TTumuu Rumtey called and s«vom.

The Note proposed to be read, and read ac-
cordingly.

" Augusl 97, 1738.
** I promise to pay to George Watson, esq.
er kearer, the sum of' six tJiousaod Ibifr luin-
tiscd poiMidsi at demand, the tike Talus re-
cs^ved. For myself and partnecs,

" Tho. Gubsom.*'

'' «£. 6,400

Then the Note was banded about smongst
Aeiwy.

Att. Gen. Now, mitlemen, it is proper Ibr
ymt lotake noliee of 9ie obser? ations thst bm? e
»»sa asaiekj the whiiissis vpdii the lypstr-

Trid of WUliam Hales,

ance and ?iew of the note, the sixe and
of the pa|>er, tlie rasore, the differenc*!
ink, the letter o in the word * For,' ;
other letters. I desire that you will hx
and judge whether the side of the pap
to the name halli been lorn off from sot
else, or is as it was originally. We i
the next place, shew the use that iras i
thisnote.— — Mr. RumseT, do you ko
defenilaot, William Hales r

Rurnsfy. Yrs, Sir.

Att, Gen. How long have you know

Rumuy. 1 knew him above a twelve
agone.

Att. Gen. Did you see him at all
temher last ?— JlamMy. Yes, Sir.

Att, Gen, What trade or business i
of yourself?

jRifmsey. I have been at sea ever si;
years of age, except when in harbour.

Att, Gen. Well, Sir.; What time n
Sefvtember that you saw Mr. Hales, ani
business did he employ yon in ?

Rumw, I saw him every day.

Att, Oen, Did you see him Septem
7th?— Hamiey. Yes, Sir.

Att. Gen. What day of the week wa

Runuey. Satnrday.

Att. Gen, What did he say fo you ?

Rumtetf, He bid me go into the city,
dress me in tliese clothes.

Att, Gen, What okttbes had you on I

Runuey, A lightish-coloured coat,
red waisiooat and oreeches.

Ait, Oen, Did be say any thing aboi
bat?

Rumtey, When he spoke to me to
the city with him, I had then a laced hi
new hat, with a broad open lace.

Att, Gen, What did he say to yon ab

Rumtey, He told me, he had re
should wear a plain one, and asked if
one : I told him, No : be then desired
take his own.

Att, Gen. What time of the day wa

Rumtey, About four or five in the afti
as near as I can guess. •

Att, Gen, Did he tell you on what fc
you were to go into the city ?

Rutnsey, No, Sir.

Att, Uen. Whence did you set out P

Rumsey, From his own bouse in
street, Westminster.

Att, Gen, When you came into the
did you do any thing there ?

Rumsey. He went into a shop, and
me a pocket book. [Produces the j
book.]

Att. Gen, Let us see it. When y
bouglit that, where did you go afierwai

Runuey, To Holborn, to a place whe
sell perukes.

Alt. Gen, Was it Middle Row ?

Runuey, I believe it might be ; but '
was there before.

Att, Gen, Did he Idl yoo be woild ]
joa wilk one ?— Ruiaify. Yes, 8jr«
4

Jot a Mitdemeanor.

IBh. Wlikt sor of one was it f

a I bnve it ID my pocket. fPulls
-cnloutrd perake.l
Gn. Fut it uD i I do not obsecre that
V d«w a dark peruke. Diil yuu use lo

M. No, Sir.

. Cm. \V tut peruke had you oa before,

l*a»(li! vuu ctiBU^;!^ it f

m». I'hia, Sir, tiiat I bare here. [A

gtlMrad ptruke,]

, 6<H. After be had SHetl you wilU a pe-

rtUier did lie carry ynu ?

Mt^ T« Joka'B culfee-hauKin Sfaire-

m dk) Mai tell roe whitlier we wer« go-
irl«r«bat.

Or». Wtaftl ka|ipeoed liicre ?
HBf. We went iam ■ back room, and
kattd ink liruught us. Immediately a

Cn. Did the porter speak lo you ?
Hnr. No; lieaibed (he porter, ir lie
Im? Ueuid, Ye«. The porter pro-
■ ItUer VtirecteJ to me, aiid ke bid lue

Co. What did you find !n i( ?
-y. I I'ooud a Dole fur 0,400'. payable
* WataoD, eiq. or bearer.

LAuk on that ; tell us wlielber
_'. U lobe the note?
^ Yea, Sir ; I taku that lo be the
R (lie bMt of a>y knowledge.

What else did you find in Ihe

[ I Foand writlen, ■' Lady liarnot
'- air JolinlfyiideCiitlon3,100;.

^iVliere wax it written ?
ntkebodyol'lbeleuer.
Was there any thing written to

I remember only these

i Cm. What did he order tou to write

mg. " Jaum Moreton, or bearer."

r Oim. Ai\er he bad bid you write this

what illil be do with ihe paper ?

tftjf. Tore ihew names off.

. GtM- What dill be do with the rest of

tmt—Rm<*ty. I know noi.

lOtm. WhoihehadlornnlTthesenaniea,

•rwkk ohai you had adileil, what did

mji' lleptUHiD the pocket-book, with
Ir U 0,400/. and a 40/. uoIb and two
MeL Ha lh«u ordered me lo ^o to Mr.
Mrf Mtock'a »hnp, lo g;ive tbem the -lOl.
Hi tb* two othiT notei, and to take their
lanbW lo JamcB Mareton, or bearer.
Gra. For what auru ?

m, Itn* to tdl thcmlbatheliredatthe
■H tf &<nd>«treet ; but I nerer knew
~ ' ad me to il««irti for the 6,400/.
■ At *^iOOi< y»>>bl« lu lady

A. D. 1728.

Harriot Elliolt, and 9,IOOI. payable la lir Jobiu
Hynde Cottou, or bearer. ,L

All. Cai. What furtberdirectioDS did ii«g
give you ?

Kumtet/. If my name was asked, be bid mi\
lay that it was Tboma-f Fowltr, or any otherjj
it was an initiffereni tbioj,', and I mignt n .
use of any name but my own. He had be«t ]
so »ery kind to me, and I had so gDod »i
nion tliBt he designed no ill, that 1 readily iJ
as he ordered me.

AU, Gen, After he had given you 1
pocket-book with these notes and iosiruction^ J
wbitber did von go?

Runucu. To Mr. Snow and Pollock's.

Atl.Cltn. Wbitber did Mr. Hales go ?

Ruriaey. A liitle way to shew me the houw^^

Alt . Oat. WbRt happened ut ibis sbop i

Ruinuu, I asked for ibeir note for the sma^
notes, wliich they readily gave me. 1 ^''^Bj
produced llie other note, and desired thnTa^
notes i the gentleman said, he did no
accept it, because it waanolallof Slr.Gibaon't.J
own h and- w riling.

Att.Ccn. Didhe mention any other re

Rumicy. 1 remember not.

Atl.Gm. Dill be ask your name ?

Aumcy. I think he did, and I told him Tbo-^

Att, Gtn. Did any thing further happes 1
there ? — Rumiei/, No, Sir.

Att.Oen. What did you do then ?

Ramsey. I went back ; Mr. Hales met n
a little way off, on that sideof Temple-bar nej
tbe shop.

All. Gen, Had be appointed to meet yoivJ
there? — Rttnary. No, 8ir, j

Alt. Gen. VVasit within TiewoftbeshopF 1

Rumtfy. Yes, Sir.

All. Gen. What did you say to lii
you enme back ?

Rumaci/. He Baked me what I had got, aoj^
1 told bim ; then we went back to John's cof^V
fee-huuse, where I Ka«ehim the note; helheoT
bid me write, air Richard GtosTcnor, instead oC J
lady Harriot Elliott.

.il((. Gen. On ihesamepaper.or anotherF ;

Rumsev. 1 cannot say.

All. Gen. Did be bid you strike
name. "Lady Harriot Elliott ?"

Runisn. No ; but write on a plain paper, J
"To sir Richard Orosvenur 4.300/. Tn!" '
Hynde Cotton 3,100/. pay^ible lo tlicm or||

Alt. Gen. A^er ibia, what further directioia ~]
did hegiTeyou ?

Ituiiiset/. HeorderedmetogotoMr. Boare^J
in Fleet-street ; be went opposite to tbe shop, J
and shewed me ibe sbop. J

Alt. Gea. What time of the aRemoon wU^
it? — Rumtty. A little before it was dark.

Att.Gen. What o'clock?

Rumiey. Half an hour or three ((uarlers
fore it was dark.

Alt. Gea. What instructions did be gita
you la observe at that sbop ?

Rumtey. To retxive fur ihia nola their uatM

^ A

179] 2 GEORGE 11.

for 4,300/. to sir Richard GroB?eiior, and 2,100/L
to sir John Hynde CottOD, payable to them or
to the bearers.

Att, Ccn, Did he give yoa directioils about
taking any other note ?

Rumsey, I have a notion of some other note,
but I cannot say positively what it was, but it
did not exceed 70/.

Att, Gen. Did he gire yoa any thing In
notes or cash P

Runuey. Much the same as before.

Att. Gen. You say you had a note fironH
Mr. Poltock; did S(r. Hales return that to
you?

Rutnsey. I cannot say positifely ; but it was
that, or some other notes, not exceedini; 70^

Att. Gen, Did he give you any directions
as to your own name ?

Rumsey, The same as before, Thomas
Fowler.

Att. Gen, When yon went to this shop,
what peruke haid you on ?

Rumtey. The dark one, and the other ilk my
pocket

^Att, Gen, What passed at Mr, Hoare's
BnopP

Rumscy. I received their ngtes, one fbr
4,300/. payable to sir Richard GrosTcnor Or
bearer, the other for S.lOOl. payable to i^
John Hyndc Cotton or liearer.

•Att. Geri. What did\oo give for them P

Rumsev. The note of 6,400/.

Att, Oen. What fbr the smaller noteP

BMtM€u. I cannot tell.

Att, Gen, For what sum wa» that f

Rumtey, 1 remember not, but it did not ex-
ceed 70/.

Att, Gen, Where did you find Mr. Hales?

Rumsfy. He told me be would wait for me
at a fruil- stall at the end of a court about six
doors further. 1 went thilhcr, and delivered
the notes.

Att, Gen, Did yon deliver him the notes at
the fruit- sUll ?

Rumsey. 1 cannot be positive whether there,
or nt the coffee-house.

Att, Gen. Do you know the court where
the fruit-stall wasr Was it Mitre-conrt?

Rumtey. i know not, not being acquainted
Vfhh the town.

Att. Gen, How far from Mr. Hoare's ?

Rumt^, About six doors.

Att, Gen, When you gave him the notes,
did yoa deliter them with the pocket-book, or
without? — Rumtey. Pocket-book and all.

Att, Gen, Where did you go afterwards ?

Rumtey. He took a coach, and bid the
coachman driye to the Royal- Exchange.

Att. Gen. Whither dia he go when he came'
there?

Rumtey. He went out of the coach, went a
little way with me to Janeway's coffee- hobae,
called for pen, ink, and paper, and bid itfe
write •« 1,200/. 1,100/. 1,060/. 1,000/. to Sar
muel Palmer or bearer."

Att. Gen. WhatiostmcfioAfdidhe^teytfli
ftbottt Suanel Palmer ?

Trial of William Hales,

Rumtey. To say that lie lived in A
street, in Goodman's fields.

Att. Gen, After you had done thia, v
did you go next ?

Rumtey, Next he carried me to Mr.
ward's, a banker in Exchange- alley. .
then dark. He bid roe desire their nc
these sums, payable to Samuel Pale
bearer, in lieu of the 4,S00/. note i
Hoare's.

Att, Gen. Wtiat happened there ?

Rumt^. They said they could not dc

Att. Gen, Where did you go next ?

Rumtey, I went to him, who was cl
the door. He took me to Mr. Brassey'
me desire their notes for the same sum,
of Mr. Hoare's note payable to sir h
Grosvenor. They gave me tlie notes
asked me, what Mr. Palmer it was?
that he lived in Muusel- street, Good
fields.

Att. Gen. Did you say any thing fur
hhn?

Rumtey. I think not ; if I did, it wai
Mr. Hales directed me.

Att. Gen. Did they ask your name ?

Rumtey. I am not positive; if they
told tliem as elsewhere, Thomas Fowler

Att. Gen, Whither did you carrAr ihe

Rumtey. I carried them to Mr. Hates

Att. Gen, Where was he?

Runitey. He was by a shop at the cc
a court ; he was in the court, and came
there. This was a little beyond Mr.
door. He bid me ask the price of 8oi
bonds, and ask them, whether they coi
1,000/. worth by Monday inornmg?
said, (hey buiicve<l they could. We the
to Jaueway's coffee- house.

Att, Gcii. Wlint did he then ?

Rumsey. He caHed for something, [
it, went to Stocks -market, theucc took
and went home.

Att. Gen, Where did you go? D!
leave him there ?

Rumt^. No, J supped with him.

Att. Gen. Did he make any fuither a
meat with you ?

Rumtey. He bid me be ready on 3
morning in the same clothes.

Sol. Gen. Where were you ?

Rumtey. I was at his house; he
me there.

Sol. Gen, Did any thing else hapj
Saturday f^^Ruttucy. No, Sir.

Sol. Gen. Were you to put on^ the sa
and |»eruke ?

Rumtey, Yes, Sir ; and he ordered tl
to comb and powder it.

Sol. Gen. On Monday morning dU ;
as directed ?

- Rumtey. Yes, and lie then told out
broad pieces and ten guineas.

Sol, Gen. Those notes that you recc
Mr. Brassey's, do you koow the dale ol

Rumtey. Yea. &i Monday moaiin

%\gl

Jir a MkitMtoMir,

[I8»

.11

SI
t1

•AU \\^ bad the nine wig on, I be- t
i^Iajfkknnrlriin.

Af^iUiiir. Let him pot the wig on.
ftBW Mii M the ilaik wig.)
1£l ro, I mily beUe?e that that is the
MpHilliMgh I never nw him before
mwt. fle WM a good genteel yonng man,
rikiMwif.

alUfiff. What clothes had he on ?
i I cannot directljr tay.'not kaovring.
MXa, Now we are going to Mr. Hoarc'a

Hr. Iwmtr called and ■worn.

' JKfim. Mr. Turner, look on that paper ;
JfcfljMKeitfirat?
flnr. On Saturday erening, September

KGn. Pkay.can yon recollect with your*
Wife it was that brought it you ?

Imr. Sir, 1 did not see Mr. Ramsey
L^b CBBie into the shop first.

r 1: 'Bkhaari Hoart called and iwom.

Ga. Hr. Richard Hoare, pray tell us

lyin saw that bill first?

■ra On the 7lh of September last, about

[Abek in the evening. That gentleman (as

' k) produced Mr. Snow's note, and a

Hie of 95/. for which I gave him onr

iftr 70^ After which he produced this

[Mrf Mr. Gibson's hand, and another paper,

" '\ oar notes for that sum. I had not

Jai; m the business, and not knowing

D*s band -writing, called Mr. Turner

thai afiair, after 1 had given the 70/1

^Noteread:

ir Richard Gmsvenor, bart. 4,300/.
frJohn Hynde Cotton, 3.100/.

ftGfli. Whose hand -writing is this P
It is mine. Sir.

L**»f

At GeiL Do you remember what ^ou did
Mlhitoote, or where you delivered it?

(jr. At Mr. Hoare's.
> itL Cm. Mr. Turner, will yon give us an
^m what waa done upon the producing

' 3Wr. BIr. Hoare sent for me. F think
^hj npon the counter both the note Mr.
Wy brought for 6|400/. and this little di-
^jn. I made these notes pavahle accord-
%ki knowing that sir John Hynde Cotton
tfhmess at Mr. Hoare's shop.

AlG;a. Doth he?

Tvwr. Yes, Sir, he freqaently doth.

flU. Crn. Produce the three notes given at
v.lhtre'sshop.

Ttner. These are the notes (producing the

1^ wbich I gave in exchange for Mr. Gib-

1 Ml sole, and the 70/. note Mr. Hoare wrote,

*i|l signed them, and gave them to Mr.

^ uM. Tou aay, these are the notes that
^pve in ezcbattffe for that note ; do you
^ what became of that bill afterwanb?

A.D. 17M

Turner, After that T had delivered thi
notes, I had thia note (Mr.Gibson's 6,400/. note)
in exchange, brought into Mr. Hoare's cash, in
lieu of the other.

Sol, Gen. Did you send it out ?

Turner. Yes, ut>on Monday morning.

Sol. Gen. Will you give us an account what
was done upon tliis ?

Turner, 1 know nothing farther.

Sol. Gen. These notes which you have pro-
duced, can you give an account what became
of them, or when they were brought back t#
Mr. Hoare's ?

Turner. I did nothing farther about them.

The Notes read :

" I promise to pay sir John Hynde CotlOB,
or bearer, two thousand one hundred pounds,
on demand, for Mess. Benjamin and Henry
Hoare and partner* Wiluam Turner."

" Septemher 7, 1798.
<< I promise to pay to sir Richard Grosvenor,
or bearer, four thousand three hundred ponnda,
on demand, for Mess. Benjamin and Henry
Hoare and partner. Wiluam Turner."

" September 7, 17«8,
*' I promise to pay James Moreton, esq. or
bearer, seventy pounds, on demand, for lleii.
Benjamin and Heniy Hoare and partner.

«« William Turner.**

Mr. George Lee called and sworn.

So!. Gen. Where is it that yon live ?

Lee. At Mr. Brassey's in Lombard - street F

Sol. Gen. Did you ever see that note before f
(Mr. Hoare's note for A,300L)^Lee. Yes, Sir.

Soi Gen. Upon what occasion or when was
it?

Lee. It was on Saturday Sept. 7th brouglit
by Mr. Rumsey to Mr. Brassey's in Lombard*
street, near seven o'clock in the evening.

Si)L Gen. What passed upon it ?

J^e, Bcingf brought there by him, he pulled
a paper out of his pocket, desiring four notes
payable to Samuel Palmer. I have three of
them by me, and an account of the other. One
was for l,'20O/. two for 1,000/. each, the other
for 1,100/.

Sol. Gen. What dki you give him them in
exchange for F

Lee. Mr. Hoare's note for 4,300/.

Sal, Gen, Did you ask who Palmer was?

Lee. He told me that he lived in Msnsel*
street, in G(M>dman'8- fields. 1 asked him, whe-
ther be was a merchant ? He said, that he could
not tell. We had a person dealt with us before
of that name. I asKed, whether it was he?
He said, that he could not tell. 1 enquire<l at
Woodward's, where Mr. Hoare doth business;
they said tl.at there had been a person there of
the same name. I iHftrari to suspect some-
thing. I then went to Mr. Hoare's, to inquire
whether it was their note ; they ner|iiaintf.fi me
that it was, and showed me M.. Gihson's. I
said that 1 believed the name was IMr. Gibson's
haudi but not the body of the iiolc.

2 GEORGE II.

Trial of WiOiam Halest

[188

SoL Got. lliis iransaotioa wm oa the 8a-
tuc4ftyf8a||t. fib ; bow came 4iie bills to be
dated! tbe Mb r

JLcf. Our acGOunta were balanced for that
day, it bein^^rjate in the er^ng; therefore
they were dated the 1Kb.

Sai.G£u, What beoame of them afterwarda?

Lee. They came back afl^ain : tvo of them
came the sasie da^, Ibe otber the next •moro-

Sol. Gem. Who brougiftt them P

Let, The mobt of the mooey -was fiaid to
Mr. Hals the broker; there was 650/. paid to a
perioo who bron^t one of the ooies in the
morning; I believe that it was about ten
o'clock. We asked him his name ; he said,
it was John Roberta. He wanted to have 650/.
to be wrote off from mie of the notes, and want-
ed the mOD^ for it. As 1 bad aome reason to
suspect on toe Saturday night, and he coming
80 soon on the IMonday morninir, I asked him
whom he came from 7 He sail. Mr. Mansel.
I hesitating, he said, the gentleman that it was
to ; I said, Palmer ; lie said, Pakaer in Man-
eel atreet. I did not know but that there
might be some demur on Mr, Hoare*s note ;
then^Mie, to protract time, I told him that he
might receive the money at the Bank. 1 gave
hia Bank-notes:

No. 11, payable to Mr. flankey, 100/.

106, payable to Mr. Collett, 50/.

131, pay able to Mr. Charles Shales 500/.
Which together made up 650/.

Sol. Gen. Yon wrote off, 650/. Did yon
ddiv^ the note, when indorsed, to the person
that brought it? — Lee, Yes, Sir.

SoL Gen, This was a 1,900/. note; How
was the oilier 500/. paid ?

Lee, The other part was paid off at several
pajnments to Mr. Hals.

SoL Gen, As you have given an account of
that note, can yon give an account of the
other?

Lee, Two to Mr. Hals, Sir, at several pay-
ments.

Sol, Gen, How much was each for ?

Lee. A thousand pounds.

SoL Gen, Well then, of these notes two for
1,000/. each have lieen paid ; Hath the 1,100/.
note been paid ?

Lee, Four hundred and twenty pounds have
been paid as part uf the 1,100/. and the rest is
(Hit-standing still.

Sol, Gen. Do you remember the ibrm of the
person that came to you by the name of Ro-
berts P Is that man the peison ? (Pointiog tp
llcdiert Hall.)

Lee. Yes, Sir, I believe that is the person.

Robert Hall called and sworn.

SoL Gen. Mr. Hall, pray what trade are yon
^'f^HiilL Ataylor,Sir.
SitL Gen. Did you evor work fur Mr. Hales?
lialL Yes, Sir, several years.
S(d. Gen. Do vou know^him .*
mn. Yes, vflfy well, l^r.

Sol, Gen, Had yon anr coBversBtion wkk

him in September last ?-- nalL Yes, Sir.

Sol. Gen. Did he send fbc yon ?

HalL He sent his tbotman for me, Septem-
ber 8th, Sunday night.

SoL Gen, What message did the fbotmaB
bring vou ?

Hall. He came and knocked at the door;
m^ wife opened the door. He desired to wpetk
with me ; she said that I waa in bed. He
came up, opened the cmrtain, told me he baA a
message for me, I must be with his master if
nine o'clock on Monday morning at lioydli
coffee-house in Lombard- street; fsaid, that I
must be with Mr. Rumsey at that time to tahf
orders for clothes ; he told me, that I should mctt
Rumsey there. I went to Lloyd's, and waUwl
in the coffee-room. Whilst I was there, tberd
came up one Leigh, who asked me what busi-
ness 1 came about? I said, That 1 couM not
tell, but waited for 'squire Hales. I asked him
what his business was ? He said, that he bad a
letter to meet him there. I drank aom^hing
there before Mr. Hales came, which was the
best |)art of an hour. He first mentioned
aomething to Leigh ; he then asked me to stay
one half hour more. Accordingly I sat down.
He talked awhile with Leigh. When Leigb
was dismissed (whither 1 cannot tell) he took
me up. In the passogu he gave me a note, and
desired me to go to Mr. Brasscy's, and receive
650/. upon that note.

SoL ben. What note was it ?

HalL About 1,200/.

Sol Gen. Whai dirfctions did he give youf

Hall. He told hip to go tu Mi . Brassey 's the
banker, at the Acorn ; he told me t«i receive
650/. on til is note ; he told me to mind that
there was no mistake. If (said he) they offer
to pay you silver, give them halt' a crown to
pay it you in gold. He told me tliot 019 gui-
neas and one sliillinar would make just 650/. I
took these notes (the Daiik-nutes he received at
Mr. Brassey's:) he looked them over, and
said that it was all very right.

SoL Gen, Look on that paper : did you ever
see that paper before? Is thattiie note that
you delivered lo Mr. Brassey ?

HalL Yes, Sir.

SoL Gen, You say, that yon had instrnc-
tions to receive it in gold : ifid they pay it in

Hall. No, Sir, three Bank-notes.

Sol, Gen. What was the amount of them?

Hull. Six hundred and fifty pounds.

Sol Geti, What did ^\oii do with them?

Hall, I gave them to Mr. Hales.

Sol, Gen. Did they wrire imon the notef.

Hull. Yes, the\ discounttii this 050/.

Sol. Gen, When sent by 2^1 r. Hales, had yo«
instructions what nanif \ou should go by ?

HalL Yes, John Rubvitst.

£('/. Om. or what place ?

Hall The Huy- market, or any place wheM
I pleascfl that way ?

Sol, Gen. Did you aee him whik yoa werri
in the shop?

I .'.!.' pas«a)^inL|njd'«coffee-li<Mse.

Minefiank-iiate&roL' 6Ml. wliicb

I it> JHr. iUlet. m you ewet te«

ilterwardar— Ho//. YeB.Sir.

.^(in- li|>OD whotoecaiiiun ?

B*II. lie laid me, ttint il' 1 wntiM lake a

inll ada ihn piazu by ihe Unyal Exchange,

kvsU noir tu till'. Aceoiilmgly lie came

k at, and al the vuflee-house (JanewHy's

Mbbaoan) Ka*e air tbem agnin- He askifd

m, wfafbsr f wBi <>ver at the Bniik ? I luld

iBtallAll ludbMi>wilhitiit,buln»crrecmeil

Snaary tfaerc for myselt' or an; boily gIk.
W ■> sn wil receive Uiia in gnli), ur il' I
ifeaU b« ollcnid Bilrer, tu ilu ua dif ecieil before.
Stt, Orm WhU were you to do with Itf
11^ Tn iiriag; it lo him at lliis cuHet^liouse

Did yon go to the Banb ?

< II I to iiue there ; be bid me go to
' mail, and be would sign my
■ In him, lie signol tiieill ; I llieu

. ilie sanie perjon, who ]istd me

er« Iber the strme tills which
aiMr. Drasscy's?

Uid yon r

In ^tjM.

■oeire it iu gold or
liim wtica yuu were

lorihclEtlcranhom

JulUc'inLe

ny notice of you ?

Sif Nk.! ..

MAOtm. Auryouorhim?

.&IL N«i beiiiit buKy reiieiitiaK the money.

& Cf. If « Mw you. did iwt he 1

tLOi*. What did yondo with it^

BtlL I Mok it at Ihc Rank.- Ai I was

'B(iK>ri'r''"Hltey, Mr. Williani Hales
•<a aakdioit bv Ibe utlEV, we tiirutd into a
■^-1 (Ibc 'iii'.U.- and »M:e|itre tavern) ; he
(.vjjf drjnrr, ia<i called for an half ^ot
' - ' - die money, he counted

> < ynu any reason why

.. , -.I, you were a longtime

id. OtiL l>id b« offer you any thmg tor
fwpa«>.>

BtU. Vm hut 1 aaid iWt I would have
MtMf fram a K'nllcmau that I had serveil ko
^(- lleiH>l,ill wauldcallun him the next
*;, be wnalJ lend tne 101. and I ihould work
!■«.

U. da. Wby did you |f9 by the name of

Ki*wvr
£Ui- I tkM^ I iH(bl 4a a*/ Uiiog for

Mr. Ronkfy called and awom.

Sol. Gen. Mr. iTankey, will yon siFe sn ac-

lUBt wbeihei' any bill* were brought Id you,

hat they were, and by whom brought?

Jfankey. Mr. RuiMey (this gefltltunsn here)

ime lo me od Monday mor Aing, 8eplciabe*

the 9lh, »iih two notes, tor which I gate bim

myoolps, payable to Satinid Palmer dr benier,

one fir 1,100(. Ibe olberTor 1,0^. wlliuh whh

£0'. amounied to Mr. Hoare's notea or S.IOOI.

Bod'TOi.

Sol, Gen. Did you hsIi htm His name?
BaHkey. No ; but I ashed htm who KotlttKl
Palmer was, because we had a geiilleman 0^
ihal namelbat had a drawing account with as,
and I thought that tMs was (o be pnt to hia
DCOouDt ; but he (old me, that it was a gen-
tleiDan in Maosel-ftreet in Ooodinau's-fleldv,
When he had done his business, he went out of
Ihe shop. He brought a liRle bit of paper,
wherein was written ti) go to alderman Han-
key's and gMIhe two DoiCB figured down 1, |00/.
1D5I)'. and 90f. in money,

Sol. Gen. You have looked on Rumsey ; \»
thM Ihe very man ?

Hankey. Yes. Sir; I was witli him, when,
having b«en apprehended at the Bank, be wW

Sol. Gen. Do you remember any ibfny of
one Lane's feKhmg any money ?

Hankey. If you wilt favour me whh the
notes, I can tell the Itetler. The I.KIU/. n<yi«
was hardly dry, when he sent a purtcr-ttiM
fellow, who came to a servant of ours, atnttfr.
sired that he would indorse 5502. nnd give it
liim in guineas ; he did it ; he had i>, and
Went mitof (heahop. I believe ihat it wssnot
an hour before Ihe same person came n^ain,
an4 said thai Mr. Palmer bevfged pardua fer
giving ns sDrh trouble, he did Doi kmvlr he
bhould so snoB liave occasion fur it, desired that
we would give hint tlie renraiuder hi Bunk. I
aaid, that we Imd not just the sum i» Bank,
but I would give it him In money; he said,
then be must go and fetch a bag. Tfe went
accordiirgly, and fetched a ba^. We asked iris
name ; b« said, that it was Samtiel Lane, and-
that he lived in MarlDe-s']unre, I gave him
523 guineas and an half, and 6i. Qd, which
ciiRipkled thai nnte. .As to the other note, it
had not been writien long, but a servanl lo Mr.
Hals, or be himself, came and desired that £
would give him ■ nnte fur 853/. 14i- 3d. p«y-
oble to liim. 1 indorsed it, and gave bim a
uole for the sum that he would liave.

SU. Gen. There are three notes that com-
pleie the sum of i,oW. Do you remember
my Bank-bills T

Uunk^. I paid none at at).

S(ri. Ocn. Do yon know any lldiigr of Mi«
rflMdoe bein^ paid '! Give an accoaal what

Huitk*!/. I'he remainder was ihns )iaid;
l,lWf,wiui|«idtaSiuuuelLaae; l,o^ttf,b]ri»

191]

S GEORGE n.

Trial tfWmiamHulet,

[19

doiwmeDt for Snnael Palmer, fi>r whicb the
person had a note payable to Mr. Joho Hals
for the same sum ; for the reroaioder of that
note, two notes were given, payable to James
Hickman.

Sol. Gen. Were you present at the Bank, Sir,
when Mr. Hales and Mr. Ramsey wens seised ?
' Uankey. No; but I waa there, Sir, when
he waa examined.

Mr. Benjamin Cole called and sworn.

Sol. Cen, Mr. Cole, do yoa know Mr. Hals ?

Cole. I live with him, »r.

Sol. Gen. Are you his servant, or partner?

Cole. His servant

Sol. Gen. Do yoa know any thing of Mr.
Rumfsey ?

Cole. On Saturday September 7th, he came
about seven o'clock to me, and enqnired the
price of South-sea bonds. He said, that he
sbonld want a lar^ parcel. I promised to
get him them as cheap as I could.

Sol. Gen. What name did he use ?

Cole. None till Monday the 9ih of Septem-
ber. I then bought ten South-sea bonds of
100/. each ; 1 asked him what name they
abould be wtered in f He said, Samuel Palmer
in Mansel street, in Goodman's- fields. The
amount was IfiM. 14f. 4d. for which he gave
me Mr. Brassey's note for 1,000/. and the rest
in money.

Sol. wn. Did you observe the date of that
note?— Co^. I did not observe the note.

SoL Gen. Were there any other bonds ?

Cole. He sud that he should want more.
This happening when tliere were but few came
to market, 1 told him I could not procure him
■0 many as be mentioned. Then he desired as
many Soutli Sea bonds as I could get, and the
rest India. I procured four more South Sea
bonds, and twenty India bonds. He paid me
a note of Mr. Brassey's for 1,000/. and ano-
ther note of Mr. Brassey's upon which there
remained 550/. and one note of Mr. Hankey's
ftr 1,050/. which made 3,600/. upon which
Mr. Hals paid him 41/. 2i. 3</. which made
the balance.

Sol. Gen. What name did betake?

Cole. He said that his name waa Thomas
Fowler, and that he lived with Mr. Pdmer.

Sol. Gen. Was there an account drawn up ?

CoU. Yes, Sir, this is the abstract of the ac-
count*

Debtor, Samuel Palmer, esq.

To ten South Sea Bonds - ^. IfOOO 0 0

Interest 3 Months, 75 Days 18 4 4

Premium 4/. per Cent. - • 40 0 0

CommisiioD ••••- 0 10 0

1,058 14 4

To twenty India Bondi • - S,000 0 -0
Interest 5 Months 9 Days - 35 6 0
Premium 4/. 19«. per Cent - 99 0 0

Tjiwnnniiiiiffl »•«»•• lOO

S|13i § 0

To lour South Sea Bonds - - 400 O

Intemt 3 Months, 75 Days • 7 5
Premium on ftOOL at 41. per

Cent. - 8 0

Ditto oo SOO/. at 4/. li. per

Cent. 8 9

Commission . . . • • 0 4

S,558 17 (
To Cash paid Thomas Fowler - 41 S :

9,600 0 (

Per Thomas Fowler, Creditor.

Sept. 9lh, 1728.

Bv Brassy's Note .... 1,000 0 Q
By Bank Note, No. 123 - - - 25 0 Q
By Cash received - . ^ . . 33 14 4

1,058 14 i

By Hankey*s Note - . -
By Brassey's ditto - - -
By Ditto, Part of 1,200/. -

. 1,050 0

- 1,000 0

- 550 0

2,600 0

For Mr. John Hals,

Benjamin Cole, jun.

Sol. Gen. How came you to make it up i
this manner, since he toid yon that it was ft
Samuel Palmer?

Cole. Yes, Sir, he did so ; but we alwij
mention also the name of the person that comi
to us. This was the particular of the acoom

Sol. Gen. Pray, Mr. Cole, do you remembi
that any body came to enquire for Mr. Romiey

Cole. There was a person came and aski
for him by the name of Fowler ; to the best <
my memory, it was the prisoner at the ba
He came and asked Mr. Hals, if he had as
thing to do in South Sea bonds.

Sol. Gen. Was this Mr. Hales that aski
him this question ? — Cole, Yes, Sir.

Then Mr. Lightfoot^ a porter, was calk
and sworn.

Sol. Gen. Do you remember. Sir, any tin
in September last, that you were sent to H
Hals'»office to inquire for Mr. Thomas Fowlci

Lishtfoot. Yes, Sir.

Sol. Gen. When ?

Lightfoot. September the 9th.

&J. Gen. What day of the week wu it f

Lightfooi. Monday.

Sol. Gen. Who sent you ?

Lifhtfoot. Mr. William Hales.

Sol. Gen. Is that the gfentleman ?

Lightfoot. Yes, Sir.

5o/. Gen. What was the message that I
sent you on ?

Lightfoot. He sent me to inquire lor U
Thomas Fowler, and to tell him that the ga
tienum wanted him aa soon as he ooukl di
patch his businc8S| feo •oont immediatety awi
with m« to him*

J9S] Jbr a Mitdenueaor.

U Om. DM you Ma an; boil; at Hab'a
taHMMrcdlbenamer Shen bim Mr. Rum-
■j: »sthattb*pn«HF

Sal. 6<a. Did he come nilh yon ?
hfktfoot. Yea, Bir, he cbdh: mtb mc di-
Wlj M the pia^a under the Royal Ex*

id. Gn. Whom did he dmcC there ?

iMtMit. Mr. Utie*.

&i ficB. Yon had knoirn Hr. Ilalei be-
^t, W you DUL ;

lifUjaat. Yea, Sir, fur 90 yeara : I knew
Ua when be iraa partner with lir Siephen

JW. Gna. And are yon anre that that ma
te jmwog man that aniwsid to Uie name of
fa^f— iAjA(/«K. Y«,Sir.

■r. Btimphr*g$ called and iwom.

SU. GcM. Let hiiD aee tbe note. Mr. Hum.
|lnyi^ look upoti that note ; have you aeeo
iWh Drte b«rnre ? — Rumphrtyi. Yei|Sir.

ill. Cm. Upon what occasion f

fi^^Arryi. By diredinn Troni Mr. lloare,
I WHUorecctTe it September the 9th.

ttLGen. Wbiiher did you carry Jtr

^mphrt^t. To Mr. GibMn's hojsEt. Iliii
■AiBBM bring at home, I led it there, de-
■idlbBt the money ahould be Icfl vrilL Mr.
■nskld, one of the tellera at the Bank, to be
(hMdlben to Mr. Hoare'i account. I went
ikM ane o'clock to tee if the money iraa left
Aan; floding that it Trasnot, 1 went to Mr.
QAHa'a. The caahier wa« at dinner. I got
aNH ^ for him, and left word that I should
Whdi in a quarter of an hour. I went to
IbrHoTal Exchange, where Mr. Htiare met
■c. fre went to sir. Brauey'i afterwards.
We itopped ihe payment of the two Bauk-
BMt, whirh wp found there had been delivered
aat. I bad l-eeii returoed not abore ten mi-
■Blca. beliire we had au account that a peraoii
ni vioiiped with the two nolei.

Sill Otn, What ia your busineiar

Haai^Vcy). It ia mv bufineai to go with
Itr l\-i4re'i, aoiea into the city.

M. (rra. Wbeo you came the aecood time
k Mr. Gibwin'a, what anawcr had you ?

B^mpiitjft. None, but that the cashier waa
1^ >>! diuner.

Sol. Gen. Who wh tbe person that you
left iliF Dole with?

Eimplirtgi I do not know the geatleman's
Btae; ihrre weiK three of ihrm there, who
*ac -^rtauti lo Mr. Gibaon. One of them
uluri, Blifre it ahould be left? I tliereupan
iwnl.^Ir. Bromfield, onsof theihe tellera of
Atfiaak.

Ur. Cramlingtim called and sworn.
SU. Gat. Do you remember that you erer
Ma that note before 1
Cran'ia^ton. Yea, Air.
U. (ien. When, and opon what occasion F
CrtrntiMgln. Ttiia note was bronght to Mr.
VOL. X\ II.

A. D. 1726. [lU

Gibann*s office Sept. 9th by Mr. Hamphrcra,
an cgcot or out~teller to Mr. Hoarc. ila
deaireil, that when Mr. Fhilli|u(.Mr. Gibson's
cashier) came in, lie wonid leore a note or
money fur the same with Mr. BromfieM It tbe
Bank.

SnLGai. WhatbecameofitF

Cramlington. 1 put it into Mr Phillipa'aseal
between tbe banisters, for him la see when ha

Sal. Gfit. Are yon concerned or employed
for Mr. Gibson about book-keepingr

Cramihglon. No, Sir.

Mr. I'hillipi called and sworn.

All. Gen. Lnok on that note, Sir: Hark
you CTcr seen it biitbre ?

FhiUip: Yes, Sir, on Monday tbe 9ih of
September laat. 1 happened to be at tha
Bank ; and on my return from thence, which
waii about twelve o'l^lock, Hr, Ilarwood, one of
Ihe clerks Id our odicc, lo!d me, that Ur.
Humphreys (Mr. Hoare's c^rvanl) had been
therewith a note fur 6,1-00/. and that I not
beinjr nt home, he hail left it wiin Hr. Cram-
lingluii, desiriiiic that when 1 returned 1 would .
leave a money .ticket for it with Mr, BromlieM,
one of the tellers ol'lho Bank, for Humphreye.
1 axkcd him, where was the note? Hsaud,
that it waa' left with Mr. rramlingtoi). I
opened my seat door, and saw tbe'.noie there.
I was very much surprised, it being wrote by
a straD^e hand; and hnnwiug,by many ypsn
experience, Ibnt Air. Gibson never signed any
promissory nutes without writing the wbofe
notes. I observed a difference in the note, that
(he last words, " For myself and [lartnera,"
were wrote with a nearer resemblance to hi*
hand ihau the other pLirt of the note. I ob-
served that this note was dated the STth of
Anguht, and that he went to tbe Bath uii ihe
astb : 1 hod ihc honour lo ntltnd him several
days. He concluded his businfiis relvUnK la
the office on the 3Glh : On the !)7lh be did
nolbinij^of that business, but prettared for hii
janmey. I endeavoureil to recnllect, whether
lie hud any transaclions then with any George
Watson, towliom itwasmadepayuljlc. I could
not remember thai he hiid, nar did I remember
that t liad ever before heard of Ihe name, nor
liad I any directions from any of my masters,
that there was any such note stood out. I ob-
served also Ihat there was a diflerencc between
Ihe stile of this note and Mr. Gibsnn's; Ha
always writetl), in n strniglil lioe, " For my-
si-lf ttoil Co. Tfiii. Gibson," never " Partners."
And then aatulhe "value recavtd," be never
uficti) these wonls. I earned it lo Hr. Har-
wood, whom Mr. Hiimiihreys spoke to. I
told him, Ihat I did not lilce it, it being written
iu a strange hand ; 1 would iMtt thernbre lake
notice of II. We observed lliat there was iba
f and r, in " For myself and |iartneni," wrote
in a, different hand. 1 thougtil that there
might he some wickedness at the bottom ; I
went therefnre myself iiilaMr. Boetli's nifiee ;
and be and Mr. rhip;i(.'S being ihcrc, I desired

195] 2 GEORGE 11.

II r. Plilppps to look into the books, And see
whether one Mv. Watson had credit for such
a sum. Not tinding^ ttixy such thing, I then
desired tbein to look into the kaleudars of the
ledj^ers. Tliey looked, and saw that there
was no such name there, i said then to Mr.
Booth, I have a note for 6.400/. which I do not
like, and will not pay, without enquirini^ into
it, and acquainting Mr. Jac<mib (nlr. Jacomb
was then aoove stairs, which 1 knew not). I told
Mr. Booth tlie circumstances which made me
suspect a forgery ; Ftfh ! fsaid he) this is a
Tiilainy, a for^rv; this looks liKC one of
Hales'ii tricks. I wailed for Mr. Jacomb's
coming down ; f said to him, Sir, here is a
note for 6,400/. whidi I believe to be for^l.
It is (said Mr. Jacomb^ very plain ; here is a
rasure on a frank. (Mr. Booth having recol-
lected that Mr. Hales some time berore had
two franks from him, one of which he now ans-
pected to be thus abused, acquainted Mr.
Jacomb therewith.) He enquired where we
had it ? We told him, of Mr. Hampbreyt,
Mr. Hoare*8 servant. He hereupon took me
out with him. We went to the fiaidc. I sUid
in the outer office, whilst he went in and ao-

Snabted the directors, that such a thing had
appened. Mr. Bromfidd was sent ibrt and
•zamined, what the reason was of this direc-
tion, 4hat it should be left with him ? Urn said,
lia oould give no reason, but that Mr. Hoare's
man used to transact affairs with him ; Mr.
Jacomb took the note to Mr. IIoftre*S| and I
went to dinner.

Sol, Oca. Is it not usual for Mr. Gibson -to
€nter notes in the book when he makes them
out, and give you notice of them P

FhiUJDt. Yes, 8ir.

Sol. Gen. Sir, k>ok on the Pand r, and tell
OS what you think of them ?

Phillips. This is certainly Mr. Gibson's F,
the o seems thrust in irregularly, two e*B
€rssed, and then follows <« Myself and partners."

Soi. Gen, You have seen liis franks ; doth
4ie make such a distance between tlie F and
the r ? Cast your eye again on it, and see whe-
ther tha distance between the F and r be such
■s is usual in his franking.

FkiUipi, Much as osual, for 1 have com-
pared it with some franks, aud they are there
at the same distance : but 1 observe the o is
not of the same letter, but crowded in irregu-
larlv : And the o is of a blacker ink.

Sol. Gen. Please, S^r, to k)ok on the be-
ginning <rf the m : What observations do you
make on that ?

FhiUipe. There is the stroke before the first
minini of the m that seems of lighter ink.

Sol. Gen. What do you make of that ?

FkUlips. It seems to me to be the tail or
4illtnofthee.

Mr. Maddox called and sworn.

SoL Gen. I think, Mr. Maddox, you belong
10 the Bank f •^Maddox. Yes, Sir.

SoL Gen. "Proy^ Sir, will you give ns an
■coounty whether any notice was givon you to
•top no/ Bank- Wis r

Trial of William HaU$9

[196

Madiai. Mr. Brassey, with Mr. Hum-
phreys, (Mr. Hoare's man) came to the Bank to
desire me to stop five not^, with the nnmbcn,
dates, and names. I looked and saw that
tliree of them of 350/. were already pud. I
took the numbers of those not paid, and gavt
directions to all the tellers, that tne minnte any
brought any of them, they should give mt
notice. In a little time after I was gone vp^ I
was called down again. Pewtress (one «f
them) came to me, and told me that two hun-
dred pound notes were brought and demandedt
I asked him, who brought them ? He told ms^
that person (Rumsey). I bid him bring a em-
atable, and not come back again till ne hid
brought one. When lie had brought OM^ I
charged him with him. 1 asked,him, where he
had those notes ? He would not tell me whfie
he had them, nor who he vras, but was vm
obstinate. One of the officers of the Bank saio,
that he knew him, that his name vras Rums^,
that he belonged to the Eagle galley. He
asked me to let him write a letter ; I let bun,
but would myself appoint the messenger. 'Hi
wrote a letter, signed it Thomas Fowler, aoA
directed it to Blr. at Robin's oofliBe^

house. I called some officers of the Bank,
and directed them to go there with the eon-
stable, and see what suspicions person wis
there. They went into the coffee-house, and
enquired of the master of the honsc what com-
pany was there. He said there were only thiet
neighbours, and a fourth person whom he dM
not know. Whereupon one oftheoffioentf
the Bank said, I know that person ; that is Blir.
Hales. They went and seized him. As tiuy
brouffht him mto the Bank, Ramsey said, thtt
is the person that F had the notes of; and would
fain have spoke with him. I kept them apart,
carried the one up stairs kept the other bdow.
They searched Ilumsey, found about him 60/.
and ^L in different bags, and two notes were
slopped below, before they went up to Mr.
Hales. They found upon him above stairs
thirty -six South- Sea and India bonds, a bill of

fiarcels tor some of thcui from Mr. Hals, five
Kindred and odd pounds in money, a note of
Mr. Brassey 's, and Mr. Sbales's note.

SoL Gen, What account did Uumsey give
of the money found upon hirol'*

Maddox. Thirty ti^e pounds and odd money
he said wert his ovvu wage!s». There was about
60/. besides, which he said was Mr. Hales's.

SoL Gen. What notes had I^Ir, Huies about
liini ?

Maddor, He had a note of Mr. Brassey 's of
680/. the remainder of the 1,100/. note; a
note of Mr. Shaleb^s of 12U/. A note of Mr.
Thrupp's he had received, and had procured
the money for il, as he owned when ne came
upon his exiuniuution.

Sol. Gen, W|s bis examination iu writing or
net?

Maddox, It was taken before sir Edwiid
Bellamy. 1 cannot say whether it^as in
writing or not.

Soi, Gen. Go. on, and give us an

1 - " 1 Jar a MiaJtrntanor.

wtu Mr. fifties niil when examined at the
BiriE, «poB making up tbe tccouot of wtiat
wwUMi fVooiliiui.

MmUti. It wanleil about 4 or SCKH. of the
AiUOt. Mr. Bate* bariiif^ tb>t day (as he mid)
nii^Hil two GaM- India bonds, which hv bad
fiMiai with Mr. Braaier i anil had ahn taken
sfaaMasf Mr. Thrunp\ for 4O0/. which he
iai Jimnalei with Air. Sbalc*. Amnng^the
flfMf*atwer« found upon Mr. Rales, there
■MMKCOHOi of the psrlicutar produce oflbe

UCna. fThatdlilMr. Ralessay."

iidier. He owned that he cniiiloyed
tmamn ; bM nid, that be liimself was em-
Blmiby one Samuel Palmer, a pcnon whom
MM hn» acquainted with for «ame moutha,
*aJ (kai (fab nolo na« left bv liim wiih him to
■nort in aomething that wnuld tui n to account.

Sat CtM. Was tb«re any noijce Ihea takeo
d B>mai'y '• going by a tham name ?

ilaridw. I remeajiierDoIlhat.

&1. G(s. Was there any one ihat laid Mr.
BbIm,11mI he was a laan of figures, and de-
mtk htm iherdbn; la give a more particular

Ibddai- Yn, Mr. nrosea Raper.
im. Pagt, U it not eoough that Mr. Hates
ktoidr owned that what be bud wag the pro-
teaf ih« 6,400f. note? Did not )tuni«ey
■Maf* all tkia f And came be not from hiin
H Ai B»iik f Hath he nut owned it?

r. That was one of llie notes found
Hale..

I •<?

inL Pagf- Dad you any ditcourae with
Um abHxl lite import of it ?

J-

No, my lord. Thii paper,
(uuod in lh« pocket of Air. Hales, con-
a particular ae«uuni of the produce of
IktMOOl. note, and d lUtle more.
IW t«pci- read :

Om at Mr. Henry Iloare's fur -1,100'.

mUelotir John Hynde Couon.

maafTOJ. payable to James Morelon, Mq.

Ow«r i.000l. nf Mr. Nathaniel Braisey'a.

Baok-DoUi, N". 4lQ, for 1,000/.

413, for J.OOO/,

414, for l,90or.

415, fur 251.
MM. rtoeiiad in Gold.

Alt Ota. In caae of forgery, every cir-
^■MMtce b oorroborating of the fact, and
<^&dutm tUi was proper to be laid bvfbre
fcjory.

ImL Page. Whoae writing ia lhat paper?

iladiLu. I bvliere it (o be his : I kuetv bitn
Vboi a ffoldsnitli.

iay Darmtll. Mr. Maddox, I deiire to aak
)•• aaK qncMion. We bare a Tery good opi-
iMaffoo : I'ray, do you not know oneNi-
kMl PalBMr ? iJiid you never any iianvan-
<iM in year booka between Mr. Hnlei nnd
fc»Mri Pat»«r, with relation lo a lO.OOOJ.

1>. Nl^ H

A.D. 1728. [198

Serj. Darnell. Nor have yon narer heard
of him i*

Maddot. No, only by the paper found on
Mr. Hales.

Serj. Darnell. Did not the defendant Mr,
Ralei brin|f ynu a draught from Mr. Jacomb
upon a particular occasion, payable lo DymerF

Maddar. 1 cannot remenber this. Wo
neier bad any accoani, tliat I know uf, witk
Pahiier.

Motel Raper, esq. bhotd.

Atf. Otn. Mr. Raper, will you look on (hat

Eaper P Hare you aeen it before f Do you
now npon wbaioccaaioa it wsf wrote, at)<f bjr
whom ?

Rapcr. I waa at the Bank the Sth of Sep-
tember last. Alderman Bellamv was lh«ri
examining Mr. William Hslea : be was then
giriog an account of the produce of that ante
of 6,4001. of Mr. Oibion's. He was a lon^
time before he could cast it up. He itceiiieHi
not much concerned. I said to him, I wander
that you, who ere a man of figures, should be
ao much at a loss : you wsnt about 4001. Ha
at ten^h mentioned a note of one ThruppV.
They aiked him, where he had that nat«?
He said, of one Palmer of Mansel- street.

All. Gen. Did you aee hiui wrilethal note f

Haper. I saw him sum up that, as the.[iro-
duce of the 6,400/. note.

Alt. Gen. Do yon remember tliat iLe quei-
tion was asked hiiu, why Rum&ey wcat l>y the
name of Fowler ?

Raptr. I know no reason that he gave. Ha
was asked the question several limes, but gave

All. Gen. The evidence, my lord, hath been
so extreme long, and every part so well con-
nected, that 1 shall nut trauble your lordsliip
with any observations tliercupon. Ifiherelis
occasion given by the reply, youi lordship will
then give us leave.

Serj. Darnell. My lord, and genlleroen of
the jury ; 1 am couniel in ihi? cnte for Mr.
Hales. And indeed, acoonliitg tn the misre-

tresentation that they have laid him under,
e is a very unfortuoale peraon. And really
they have given a great deal to lead into a sus-
picion of the tniih of what he is chargeil
with ; but we think a good deal of it h owing
to the misfortune he lay under. Riling; been
a bankrupt many years, and not having ob-
tained a certificate, it was therelure impos-
sible for him to carry on any thiog in his own
name; therefore, in the whole course of hia
traffic fnr many years, he hath been forced to
use tictitious names, and thereby conceal all
receipts and payments. And the conseqoence
of his doing otherwise is very obtious. Till
he hath obtained a cerlitii.-ate, whulanevcr he
received in his own name would br lubject to
the commissioners. Tberelore (aocunling to
my instrnciiooi) Mr, Hahs hath <.-on>'''aUd
his dealings. I am intlmctcd, thai he had
couuderabic dealings tvith one Kauiucl I'alaiar,

1993 SS GEORGE IT.

and that he was indebted to Mr. Hales Id the
sum mentioned ; and bavinfir had great traos-
actlons for many thoosanib of pounds, they
came to a balance of the account, and Mr.
Pahner [;a?c him this note in payment. It is
difficult tor us to dear thincrs in such affairs
as require privacy: bnt it appears, tliat be
bath transactcHl great affairs. He hath books,
thereby it appeareth that he bath traded for
upwards of 300,000/. and that be bath traded
ivith this Samuel Palmer for upwards of
10,000/. To prove that this is not a forced
note, will be extremely difficult ; and I think
that it matters not any thinu^ to Mr. Hales,
whether it be so or not. If it lie so, if this
note came from Mr. Palmer to Mr. Hales, the
forgery falls not upon Mr. Hales. The only
thing for us to establish is, that it came from
Mr. Palmer to Mr. Hales. They own, tliat
he said, when the thing was recent, that he
had it from Palmer. It happens (1 aajipose
lirom a certaintr that the note was a iorged
note) that Mr. Aimer is gone out of the king-
dom. It is impossible therefore to produce
him ; and if he was here, he oould not be a
witness. And, if my instmctiona are true,
that I^almer is gone, it leaves Mr. Hales
without the assistance of Palmer. Taking it
lor granted that he hath forged the note, we
submit it that Mr. Hales cannot be guilty of
the forgery. — Another part of the indict?
nent is, that he hath published this note,
knowing it to be forged. If he received it in
satisfactJDn of a debt or demand that he had
upon Palmer, that cxcuseth him. Mr. Palmer
being gone, it is only possible tor us, first, to
establish Mr. Hales's character, then shew
tliat he is a ^at dealer, and produce his
books, in which these thing^s are entered.
There are several transactions therein, some
many vears ago, some later, that will be
Terinetlby witnesses. If there be such trans-
actions which we can verify, we leave it to the
Court how far that will avail. Under these
ciroamstances we beg leave to submit it to
your lordbhip.

Serj. Bajfnes, My lord, and gentlemen of the
jury ; I am cooumI on the same side. The
first thing that lies under consideration is, whe-
ther this note was forged by Mr. Hales? That
it was a forgery, tiiey have giveu strong evi-
dence; but the only question is, first, Whether
Mr. Hales did forge it? In the next place,
whether he publisiicd it, knowing it to be
forged ? These are the two charges laid against
him in the indictment. We hope, that uiion
the evidence we shall give, you will think him
clear of what is charged. It is well known, that
he hath dealt for as great sums as most in
Lombard -street : he hail the misfortune af)er-
wards to fail ; therefore be was obli^red to act
in a different way from others. We shall shew
that Mr. Gibson himself gave him such credit,
that he trusted him witli ^eat sums of money,
and with receiving rents m Kent. For us to
prove a negative, that he did not furge tfaia
ima^ caaaot be bnt bj riw^nnHaBflM, lo

Trial ^WiUiam Hales,

[fee

order to charge ns, they haw gone a grnl
way with ciroumstanoes ; and the question isj
what validity these circumstanoes will liata
with you ? They lay a stress upon this, that ha

Sve directions to fuimsey to tralwact theae af«
rs, to change his cloaths, his wig, and to ^
on another hat As to that, that will dcocad a
great deal upon the credit of Rnmacy'a cvi«
dence which he gives. Mr. Bnmsey appiaii
to be partieeps criminis : therefore, thoi^ i
cannot say but this evidence is le^, yet iti^
fects his character and credit: it is notaoch'aa
if he was an indifferent person . As lo the wig,
they made a great noise, as if it waa bowll
with a design to impose on persons in tfaal»
guise. We shall shew that it waa not, boCviik
another design. Mr. Hales and Rooiaej bai
an intention, before Monday, to go iato tha
country. He himself saith, that be only M
the finO light wig which he bad upon hia naad.
It was very proper at that time of the JMI^
that he should have another wig to travel ia.
Therefore it seems probable, that it waa bongbt
with that view, and not to impose upoo per-
sons; since that could not make an alteralM
in his cooatenance. As to his acting iindat a
different name, that seems upon this acooont ;
Mr. Hales had the misfortune to have a eon-
mission of bankni|>tcy awarded agaiast Um t
and after long soliciting for a cxrtifieate, "*''
not get it: therefore, although be Iran
great affdrs, all the sunra which he
ciated were forced to be under feigned and
rowed names; because if his creditora '
that he had such credit, and negociated
affairs, they would be the harder npoa Ui
Therefore there was such a direction givMi
that Mr. Hales might not be known to be eoa-
cemedinsuch an affair.— It is incumbent apaa
us, first, to give an account how we canae bj
thtftnote: there was one Samuel Palmer in-
debted to Mr. Hales between 6 and 7,000i. ; be
came to him, offered this note as a security,
that he might pay himself upon receiving tkia
money ; thereupon Mr. Hales very inaomtlj
took the note, not questioning its goodaass.
Mr. Gibson being a man very well known, Mr.
Hales knew that the signing was his hand,
thouqfh the body of the note was not \«ritten bj
him ; and he miglit be easily imposed upon,
and take this as a good note. No wonder that
it should be thought so. Thoutzh Mr. Poltock
suspected this note, because it was not written
by Mr. Gibson's own band ; yet it is plaia, thai
at Mr. Hoare's shop, Mr. Turner made aa
scruple at all to exchange this note, and giva
other notes for it Therefore, though they saw
that this note was written on a different piece
of paper from what a note of such a value used
to be, it is plain that Mr. Turner did not think
this of so much weight. No wonder, theea-
fore, that Mr. Hales sboulil be so imposed ea«
The next part of the convitleratiou is, Wlictker
he published this note, knowing it to be forgeAf
For otherwiae it is not criminal. Thtiuwa
the indictment runs, *' Knowing it to be foil-
ed." NoW| in case that we prove this fintpart

IxipetUalthen'it-
np M, tlia ulhcr part will fall

iti, knowini; il tn l>e funfcil. In pub-

^ nir lardsbip.
t^ in'iIicUucDl my lord, rani, tliRl lie, vi el
w«u. ra. * «efbii M ti[[um iieiiuFnilliiM,*
bil«4lhi* u*te. Nnw, my lord, it a nul pre-
^M«M he foTgeil the name of Mr. Gibwm ;
^ Mi fciifiiii , llioagh I do not cootrovert that
kckricntisntFr my Dtme ta guilty of for;-
^ ii|ikitb*ile note, y«l ool ■ Terbii et ligari*
'^^uIhh ;* tlial 19, forging ilie whole note.
Iknfot being charged berewilh, and lliey
^■■inff ilul li* dkl write LUe iiaii;ii I'bomas

^M. Fft. In ilie name in Ibe indicttneoi t
Jmi. B^*a. Vci, Toy lord.
Jml Pmgt. Now I'liomnK Gibson n agrpcd
k bkilfaekaarfuf Mr. Gibon, but not to ibal
I M»

I bq. fi»rM)- No, ray lord, I admitted that,

I iiiMiBf ibeobjeciioii. I Mid, llial he Ibat

I vntmmiwt my name i« guilty of tbrging such

t IMHi bal noi ' in lerhis el tignris seqiiCDli-

I 'b*l' b« ■■ fui guilty of forging Ibe name of

n^HB (iibMM). I'bcy boTe tokeo upon Ihetn

to fa thai thia nota was ' verbis et figurii je-

■'MMibui;' thrn aller tbe body of tbe noK

M«ab Thotuoa Oibavn. Now,ii>y lord, we

Mifattd tlM ia uot fore^i. Tfaotigh tbe

I MMBc* b4 the note is nul Mr. Gibson's haiid-

Iwiilf t yet tlu^ <"*», on Itie otber hand, that
A* w«e n Ibe band-writing of Mr. Gibson,
H 1^ it >p(ieara tery plainly, that we hare not
inrf llin DOIc ' verbis <!( nguris aeqiieAtihua.'
Jm. Faff, (trolher, dn you rely upon this
"" ' »? If you do, I will yi»e you my opi.
I wbcn tbe whole t» liiiiibed.

Mr. Crammer railed and sworn.
Dai^ull. Kr, are yoa Br^iinioted with

•n.iW.1

■r.#a«i

. - „ >t penonally aoqnainled

rtklM»,dMarh I barelinnwD bini by light
mmy yw«. 1 know nothing at all of bis

9my Durmtll. Do you hnow Hr. Snmuel
hkmrt Dayaubuuw biadealin^i'

e*au. Yn. Hir. aa to Mr. Pulmer. 1 knew
tialMwaobiid. 1 married hi* mollier.
•■ tmofhl up at Ibt) Bait India house,
■M lij l£* I^Mt India coiupany iota IVi
"'"" ' ""■- I many yean.. Not hating tbe
4 that be evpei'ti^, he relumed
It Maycd iu Turkey.
: t'sge. Were you ibere with him f
■" " """ what did you know of

jk ba came home throttgh

: Y<M caoMrt tay that upon oath,
— -^,_ -rtBO* Iherrwiih him, Did you
Wa Ihm hn* ai Laodou ahiT bif rMuni f
■taMbafWiar

A. D. 1728.

Gminger. I know not of any dealia^ni
had io Eogland.

Just. fa^e. DuyMiknowofBoy ImoivoLiOB
between bim and Mr. Halnf

.rahgtr. Hf told inc

list, i'age. That \a uuibing. What subslanca
he off

■rainger. He bad no GiibsUnce atall,for ba
HD inaotrent man.

uRt. Page. How long aince he wa* in
Londuo f
Qrainger. Within a Iwaliemcalh.

Thomaa At/lcs, esq. called and iworn,

Serj. Baynti. You are desired. Sir, to gitc

I account, whether you know the defendant

Hr. Hales, bow many years you hare knuwn

bim, and what is your opioion of his.''

A^let. I baTeknowubiiD twenty, three yean
ind upwards, when partner vrilh sir Mepheti
ZviDce, with whom i keiit a considerable casb
nil that time : I reireived a great many ci(i<
lilies tram Mr. Hales upon Beveral onMsiona.
' r which 1 hare always bad a good opinioH

Serj. Baynfi. AV'bat opinion bad you of hia
character ?

Aylei. I look bim to be of nagoodacha.

passing through his hanils, doting
these years that you ha>e knii'iii him ?
Ayltr. Not any since his failure.

Mr. JLary. I beg a word of the same aide
with the other gentlemen , As Io iheexcepliniv
they have made, il will not be conti-ndeil (I
believe) but that they might have laid it oiher-
They might bate made il a forgery of

e, though ibey had acl i( forth otherwise.

Our objection is, Wl>elher " verbis et ligoria
sequeniibiHi" doth Dot lie it down to the tecnud
part of ibenoleaa well as Ibe rest? Aoolber
thing is this ; lliey have grien nn account of
the publication at London in Mr, Hoarc's shop ;
whelber slrauld not the forgery be lixed in Lon*
don too ?

Jaat. Po^e. If afiirged note-be pidiliibed in
may not Ihe proseculura lay it in

Mr. Lucy. 8lrauld notthe torgery be local as
will as the pitblicaiioD f

Jusi. i'uge. Yes. If ihatvery act "f foreery
had been in Middlesex, it ought to bave been
tritd there: Bpt where there is tio |<ositiv«
and direct proof of the forgery, but the nhola
nriaes from circumsiancei, some in London,
and some in Middlesex, it may be laid in ei-
ther ; or il would be impnasible ifast anir artful
persoD should be convicted of forgery ; il iabul
being aJone when he commit* the tad, and be
is aatc. And ihe ot^eotion will be aa strong hi
one CDtmly as in another ; and then, if your
doctrine be true, be can be tried no where,
whiih sore is noi so. Yon know a telony may
botrittd ill any county wb«ro tlic goods arc

SOSj

S GEORGE II.

Trial of Wiilmm Haiti,

[SOI

found on the prisoner. As to your other objec-
tion, that the indictmeut is for fon;in^ the
whole note, whereas Tho. Oihson is Mr. Gib-
son's own hand- writing ; that is extraordinary.
Did Mr. Gibson put his name to that bill ? No.
Suppose, in a Ic>ss degree, Mr. Gibson had given
his note for a less sum, and Mr. Hales bad only
made it for a greater, would not that have been
a forgery of the whole bill ? You know it is so
•f a bond, bank, or other bill, in every day's
coaimon experience.

Att. Gen. My lord, this was the same case
with Mr. Ward's. There it was adjudged,
that Mr. Ward fmyed a note of the dake of
Buckingham's in that form. There wae no
pretence but that it was (as originally) the
duke of Buckingham's note. This objection
was then made, but it was over-mled, That
the altering a material part was making it en-
tirely another bill.

Serj. Dameli, My lord, we have done with
eur Defence.

Sol. Gen. My lord, as their defence bath
given us no further occasion, we shall not take
up your lordship's time with any reply.

Just. Page. Gentlemen of the Jury, the
prisoner at the bar is indicted for forging a note
of Air. Gibson's of 6,400/. and also tor pub-
lishing this note, knowing it to be forged ;
upon which two things are proper for your
consideration : First, gentlemen, by whom this
note was forged, (for it is agreed to be a forged
note) whether by the prisoner, or if he was
privy to, or concerned in it ? And secondljTf
Whether he us guilty of the publication of it
knowing it to lie forged ? There have been a
great number of witnesses examined ; and I
should have gone over the whole evidence as
it was given, but the counsel for the prisoner
have eased me of that trouble. Forgery it
what couoenis every £nf|[lishman : As paper-
credit is come to that bright it is now m, the
utmost care ought to be taken to preserve that
credit: but still the innocent must not suffer.
As to this note's being forged, which hath
tjken up the most part of the very long time
this cause hatli been trying, the counsel for
tiiG prisoner all agree that it is a forged note ;
and then it will be to no purpose to sum up that
part of the evidence to you« I shall therefore
take notice only of such parts as go to prove
j\lr. Hales himself guilty of this forgery* or of
his publication of it knowing it to be forged.

The two iirbt witnesses were Phifip and
Robert Booth, which may be proper to be
taken notice of by and bye.

The third witness was Rumsey, who hath
gone through this whole matter, and whose
credit hath been supported by others of un-
questionable reputation in every material cir-
cumstance, lie tells you, he was no dealer
in thid kind of business, but a perfect stranger
to it, bred up to the sea: that he hath been
aciiuauited with the prisoner for abont a year,
and from June, till the time this fact_was
committfidy wis ?ery much with him.

note, which was read and shewn to yoa, bean
date the 7th of^September last; and the wboW
management was carried on till the 9th. He
saith, that on the 7th of September, which wie
Saturday, he was at Mr. Hales'i, not thct
knowing that he was to dip his finser for his
in so vne a thing. He says, Mr. Bales only
then told him, that he must go inlo the citv
with him on some bnsiness; and that ha
dress, which was a red waistcoat and breecbs^
were not proper to appear in, in the effsir he
had to employ him in ; and that he had pro-
vided him another (the same which RimiiBj
has now on). That he was not tlionght ik*
poised enough, but was in this new drcsi ea^
ried to Holborn, and there had a Mack penkl
bought for him, and a letter-case with papf
put m, as a man of busiuess '; from whamL
after he was equipped in this disguise, be aal
the prisoner went together to John's ooffbe-
house in Shire-lane. *

You will observe, gentlemen, BIr. Hales, m
Romsey swears, did not then discover to hini
what he was to do ; but it was to come out m
by accident, which was thus : soon after they
came to the oofiee- bouse, a porter with a lettar
directed to Rumsey, came there, which Mh
Hales immediately took from the porter sal
opened; which then appeared to be a oovw
with this note in it, and nothing writ on the
cover but. Lady Harriot Elliot 4,300/. Sur Jeha
Hynde Cotton 2,100/. This, Rumsey say^
he did not understand ; nor did the prisoasr
nve him leave to open the letter, knowing Isi
Ramsey says) he wss unacquainted with M
contents of it. But when BIr. Hales btA
opened the letter, he explained to him whU
the two names and figures meant, and thsa
told him, he would have him go to Bless. Sneis
and Poltock's with this note, and get of thass
two bills, one for lady Harriot Elliott for
4,300/. the other for sir John Hynde Cotton
for S,100/. and told him, that BIr. Snow's shop
was a little without Temple-bar, and did not
so much as trust Rumsey out of his sight, but
went with him over-against the door. Iliim-
sey goes in, where was BIr. Poltock. Tho
first thing BIr. Rumsey does is to produce a
Bank-note of 40/. and 10/. in money, and to
take his note for 50/. and then produces the
note for 6,400/. But BIr. Poltock being a
very careful man, and being now called, says,
he made much the same observations that I
believe you have all made on view of it. Ha
says, it was an odd sort of a bill ; that he never
had any of BIr. Gibson's bills but of his owa
hand-writing ; and that this was writ oo so.
scanty a piece of paper, that he would nol
metldlc with it.

When Rumsey came out of the shop, ho
says he found Mr. Hnles over-against the
door, where he left him, and tells him what
ill success he had had, and gives him back tho
note : whereupon the prisoner and Rumsey go
back to the coffee-house, and there the prisontf
said, he must try elsewhere, and nanied Mr.
Hoare'i, And to give Kumiey credit tbci%

Jbr a Mudemianor.

A. D. 172«;

[306

li««ii«l 10 pty in Ml Horn's 70/. that is,
Jk Mtek^iois for 501. and 30{. in rooney,
IrilitriR fism's bUi for 70/. which was
i: teitwtboi acaree light; and CTcry
Mr. Giboan's fery great credit,
rriAo was then in the shop, with-
HHwh this note, takes it, and
two odiers. But Mr. Hales
is Greeted Ramsey not to take the
Mm Is Isdy Harnott Elliott, hot to
'^ iGfOSfcnor or bearer, and the e,100/.
f Johi Hynde Cotton or bearer ; and
flsafinns. And Kuipsey swears,
also shewed him Mr. Hoare's
with him almost to the door.
Samser had soceeeded at Mr.
htsiySfhe found the prisoner wait-
[tf a fialHitall, a small distance from the
1 there he gave the prisoner the 70/.
mi the notes he had reoeired in ex-
Ar Mr. Gibbou's. Rumsey swears,
Hfet nothing, and that tho prisoner
ivbole profit Bot th'is wonid not do
easiness, nor did he rest here.
tU^g therefore b to make the best
rssles, and to manage matters so as
ilililnesd or fonnd ont; in which, gen-
'" \% was certainly right that the notes
IJedufted and changed, divided and
" ' as moch as possible, that no track
■■ht be seen : and for this, Rumsey
f Am he acoordiogly did go with these
the prisoner's direction, from one
i ts another ; first with the 4,S00/.
JiMr. Woodward's, who wouki not
viih it; thence to Mr. Brassey's,
ih cfaaoffed it for four bills, which he
Mr. Hales, who waited for him at a

Ramsey received at Mr. Bras-
, jjljht goUsroith's, in exchange for Mr.
^prt Mitt of 4,900/. were four, viz. one for

for 1,100/. and two for 1,000/.

de payable to one Samuel Palmer,
P^ — same Rumsey was instructed by
Abto take these notes, and was himself
'AMby the prisoner to go by the name of
tMB^vliieh hedid; and the prisoner was
[^*Mil, that he waited about Mr. Bras-
4^Aip during all the time Rumsey was

jny says, that he went and lay at Mr.
gfc that and the next night ; and Mr.
^U him be ready on Monday morning
be had then put on : and accord

WM Monday morning he went with him

^^iewav's coffhe-house, where it was fixed

^ k iboold dispose of these notes, and

^feded by the prisoner to go to Mr. Ai-

■ ^^ Bankey's to make other alterations,

- i^ ^ ^® Maker's for the bonds he had

I %b, who tokl him he had onl v got 1 ,000/.

^i^^ieh Rumsey saj^s he had, and af-

^^ en his goinff again^ Iwd more.

jjwfanco, I rare laid [this] before you, not

"^consideration whether Mr. Gibson's note

^^ifed, for that is admitted ; but how far

Itr. Hales hu been concerned an actor in
this aifoir ; and to put you in mind (if Rumsey
swears true) that he was only the cat's claw,
and a mere tool for Hales, and that Hales
contrived and ordered every thing.

When all this was so succe^nlly carried
through, the prisoner semis Rumsey to the
Bank for moaey, where the matter comes to
be discovered in this manner.

Mr. Humphreys swears, that he being Mr.
Hoare's out-going cleik to carry bills abroad
and receive money, on Monday morning he
went to Mr. Oibeon's with tliis note for 6,400/.
Mr. Gibson, he says, was gone to Bath ; and
it is remarkable that the note is dated on a
day when be transacted no business, and it
was not published till he was gone to Bath.
Mr. Humnhreys says, that he not meeting
with Mr. Gibson's cashier, desired the money
should be paid into the Bank, and letl the note
for that purpose. When Mr. Gibson's cashier,
Mr. Phillips, came home, he says he had the
bill, and looking upon it, saw great reason to
suspect it, and thought it not probable Mr.
Gibron should draw a bill as that was. He
saith, that in all his time he nerer knew Mr.
Gibson sign such a note, nor any note for
money, but of his own hand»writing. The
size of the paper also, he says, confirmed
his suspicion. And sure, gentlemen, paper
must be very dear, that a note for such a sum
should be wrote on so scanty a piece as you
have produced. But the casnier further says,
that looking on the note, he found there
was a manuest alteration in the writing ; Tho«
mas Gibson was Mr. Gibson's hand, but a
rasure appeared above it, and th^ letter o in the
word * For' to be intruded in it, and wrote with
another ink. Yon have all seen the note, and
to me it seems very plain, that the letter o was
not originally written in that phice. And to give
you at least a very probable account, that this
word was at first * Free' and not ' for' and done
by Mr. Hales himself, the first witness (Mr. Phi*
lip Booth) you will remember swears, that the
prisoner some time ago prevailed on him to get
of Mr. Gibson two franks on two letters of Mr.
Hales, directed to Robert Booth, eso. of Bris-
tol, ; and says, that the foldinirs of those letters
were largfe euough to tear off the piece pro-
duced. And Robert Booth, esq. of Bristol,
says, there is no other of that name there,
and that he never received any letter fraoked
by Mr. Gibson. And as things of tliis kind ant
generally made out by ctrcamstances, '^ ^^
no very hard thing to erase the two ^r'i, »r
the o between the F and r, in such aim— ^^^
this has been shewn to you. Ocptfcy-^ ''

Humphreys goes further, and wJ^J^SiLf^
to the Bank about noon that dsy» •^ *'■■*' *•

Mr. Gibson's people had not pai^Jr

at which he says he was P^^f.^.^i ^w j«.*..»..
knowing Mr. Gibson's credit f^' ^ ^^-«

ness of his people; and '**^"* Vi
son's to know what the rt*^
was informed of the ^^^'Jl^^ T «
out thus. Mr. Hoare's t'^^ "•• ■ '" '*

S2071 2 GEORGE 11.

thifM and chati^ed about, at yod bate heardi
aome part of the mooey was at last in Bank-
bilLi, and there Rumsey that Monday morning
receif es 6502. on account of those billa, before
the fraud waa disco? ered. But from what ap-
peared at Mr. Oiboon'a, and the Bankoumbera
of the bills delivered being entered, care waa
takeii to examine the receipt book, to see who
came for any more money on those bills. And
Mr. Maddox tells you, that be having notice
given him, ordered the clerk that paid, when
any body came with those bills, to seem ready
to pay the money, but to delay it till a conalabie
could be fetched : that aoon after Rumaey came
a^in, when a constable was fetched, and cnarged
.with Rumaey. He at first declined to give
any account of his name, or where he had the
note; at length he told Mr. Maddox, that if
they would let him write a letter, he wonM
•end it to the person he had the note from ; and
aceordingly writea a letter to Mr. ■■■■■
(with a blank) at Robin's coffee-house, with
which the constable, with some of the clerks of
the Bank, went immediately to see who waa
there, and found three persons besidca Mr.
Halea. The three were neighbours whom the
coffee-roan knew : Mr. IlaTea was a stranger
to him, hot known to the officers of the Bank.
When he was aeiied, Mr. Rumscy waa exa-
mined again, and owned that that was the very
person who sent him with the bill. U|)on this
Halea waa carried up stairs, examined and
aearcfacd ; and not only one of those bills that
had been received found upon him, but also au
account under Mr. Halea's own band, that ex-
actly tallied with the account Rumsey gave.
And Mr. Maddox says, the prisoner owned the
account to be his; and the notes, bonds,
broker's accoimt of the bonds bought, and ef-
fects found upon him, to be the very produce of
the 6,400/. So that, gentlemen, you will now
take it into yonr consideration, tnat the evi-
dence against the prisoner doth not depend
aingly on the credit of Rumsey, but that he is
aupported by the number of witnesses you have
had, and, iu particular by Mr. Maddox, and
(which cannot err) the account and produce of
the money taken upon him.

Thus, gentlemen, the forgery being admitted,
I hare laid beibre you that part of the evidence
(bat principally affects Mr. Hales, and that goes
to prove him either guilty ef the forgery, or of
the publishing of this note, knowing it to be
forged. As to the tbrgery, gentlemen* of tliia
note, by Mr. Hales, I must leave it to yon upon
the strength of this evidence, wliich has been
▼ery long, and (1 doubt not) fully observed by

Jou ; and that you will give it its just weight,
(ut aa to his publishing it knowing it to be
inged, he bath not given you the leaat oolonr
of evidence to tlie contrary ; and I must tell
yon, wherever a for^red note, or other thing of
that nature, is found in any one's hands, it is in
law a strong evktenoe that he ia the ibrger, un-
leaa he can give some account of it. B«it hare
jo« af8 only told, that he bad it from Palmer ;
WtH0l«Btwwd«fproo£ Mr. Hnlea'a coun-

Trial of mUiam Hales.

E«

sd have indeed offered to yon in bis defence
first, that be is a gentleman, and shall not b
presumed to be guilty of such an uffeuce ; urn
^ntlemen, aliallany other on a bare presump
tion. But here, gentlemen, b great atrengtl
of evidence that afl'ecta him ; I do not kn«
that 1 have met with a stronger proof of th
very fact ; it is not to be expected. They kaiff
also told you, that he was a bankrupt, an
could not get a certificate ; thattliecominMa
of baokmptcy against htin waa about twea^
years ago. They say, that upon thai aoonm
he was forced to make use of other nanM I
his dealings, and sometimes fictitiona oMi.
that he hath traded for upwards of 300,000i
in that time: that Palmer was much emph^
by him, and entrusted in the carrying ai
that trade, and being thereby indebteJ to Mi
Hales in above 7,000/. gave him this note I
part of payment ; which, aa to bis trading s
that manner, I think, is so far from juatifyia
bis character, that it is of itself a crime not mad
leaa than that with which he stands charged
A man that ia a bankrupt, if he aiterwatds hi
comeaable, ouffhtin honour and conscianeai
pay bia just ddots. It is not the first lime
nave known that done ; general Wood waa i
draper, fiiiled, and (laid very little ; hn was
into the army for bread, and proved ao galtai
a man, that he raiaed himself to be a gcnani
He, like a good Chriatian, and a man that dMa
be would be done by, paid hia debto to fk
full ; which if the prisoner had done, it
have given him a much better character,
tlemen, his connsel have told you he ca .
a vast trade for twenty years ; but do thev M
you that his creditors were the better for il^ i
were ever paid one penny? No, geiokmm
they did not ; and therefore I mnat leave ill
you, whether this waa not one continued actfl
fraud to cheat hu creditors ; if so, it will -'^'
the prisoner quite another way than hb o

intended it. And though two or three wit

were called to give evidence of the dealingihl
tween Mr. Hdes and Mr. Palmer, there wi
not one thing proved : so that, gentlemii
there seems very little for you to conaidB
You have a number of concurrent witnoiad
that have given you a full and clear acooont <
this whole transaction ; that this was contrived
managed, and carried on by tlie prisoner in
very extraordinary manner, and which tbei
was not, nor could be any reason for, but I
avoid being detected of the vile crime lie ia nni
charged witli ; nor can there be any doub- bl
the whole produce of this note was for his bl
nefit, the account, bonds, and billa, having bea
found in his pocket.

I roust leave it to you, gentleroen : but nen
was stronger evidence than here is, that Ml
Hales is the author of this. So that I thial
gentlemen, if you believe the evivlence, Ih
charge, one way or other, is lully broiighl I
the priitoaer's dour. If you believe him guikj I
the forgery, you will then find bins gnihyga
nerally of the whole indictment; bnt ifyoa m
not aatiaflnd of that, you will only imi kk

' SV) TnMtqfmiUamtIale$.

Mbf of A* Mfacr part of tba iadMlnwnt ; or,
tym MB ^^ ihu cvUeoof , jou may acquit

IW Jny hcwf witUrawn, «fW a Tei* mi-
iMi Nff, braogfat tbe prwciMr in Guilty of
fa|a( ■» MMc, and of pnMMliing tbe Mine,
hSrafki* Iw biged.

r wu « fMond time indictnl
m «f S8 H. 8, e. 1, for obuinm;
J tolMM. To whiab indicbnent
t plnuUd Not Oiiiliy ; and the
w, in tnMwio*, being oSered ai

A. D. 17S9. [SIO

apen the fbrmer indictment, the ynj brangfat
him in Guilty.

It ii (tated in tbe former edition, that this foil
rennt, taken in ahort-hand by order of Hr.
OibMD, waa dot obtained in time for interdon
near to the other Cases reapeeting Halei, tn
wbieb |>art of the work waa Ikercfbre tobrti-
tnled a abort account of the trial taken fmn
tbe SeanOQ Paper. This full report bring uow
giren in iia proper place, the abridgement from
the Beanoa Paper u omitted. la Uiat abridge-
ment the trial u stated to hare been on De-
cember Mb, 178B.

I7L The Trial of Mr. Wiluah Hales, at tlie Sessions-House ia
the OW-Bailey, before the Lord Chief-Baron Pengelly, Mr.
Justice Reynolds (afterwards Lord Chief-Baron), Sir William
Thompson (afterwards Baron), Serjeant Rabj, and several of
his Majesty's Justices, for Misdemeanors, in forging several
Notes and Indorsements in the Name of Samuel Edward^
esq. and publishing the same, knowing them to be forged :*
3 George II. A. D. 1729-

OjfJrr. OyEZ. All manner of per-
mimt lw*c any thing to do at the muioqi
if Ojeranil Teriiiiocr, held for the city of
Into and c«unly of Sliddlesex, draw neai',
ml pic ronr allciiilancf:.

Ofis. "Van good mtui nf llic city of Lonilnn,
^■■Meil lo a|ipear here tliia day, ii|ion tiie
1W brtneea our •orerngn lord ihe king and
Vatam llalpt, answer to your iiamen, ai
(Mapoa, Sic. — James Tilnier, Samuel Cran-
mr, RicbarU Knollyi, William H<)»anl,
HMnRogcn, Abraham Punier, Robert Ktiap-
hd^lt(•bert Kendal, Jolin llearoe, Thomas
■aaee. TbomH C'nurt, R^ljili Knox, Tlioinu
F«d, CoraeliiH Slason, Jobo I'ote, Richard
Etuncy, Jame* Coulter, Henry i$pi'a;»f,
iMyb }BC:kM>u, Henry Athliural, Jcjtin UeT-
Uft, IVilliain Selwyo, Samuel Craiglicad,

Pitdcrick Ktaunton, Eloikyni, Joliu Jtu-

' Nicbolaa Bemfield, Edward Tay, t>t:ter

htkNie
Gmk.

Ckrk. Yon chall well ami truly try thii
iwt buween our toFerei;;n lord the king and
Vjiam Hatea. Sa help you God.

^Ml Cranmer,

fetad k.noUy«,

Joar.

I'boma* Ford,
Ralph Knox.
Cornel Jul Haton.
John l>nte,
Richard Chauocr,
Jaaepb Jacbion.

1 Cltrk. Oyex. If any man ean inform onr
Borereign lord the king, the king's jnitices, tba
king's attorney, the Iud^i Serjeants, in tbia
rauw betweFn our «otereign lord the king and
» illiam HaJFfl, let him no» come forth.

Attorncfi General. (Sir Philip Yorke, after-
irarilB earl nl' Elarduii^ke). Sly lord, we desire
tlitl those that nere Bummnneil on the jury,
who happvnpd not to be iKnrn, should flay,
Inl vriten Mr, Kiniiersley a aTraigoed there
should bna detect of jury men.

It wnH ordered accordingly by the Court.

Clerk nf Arraigjit. Gentlemen of the Jury,
William Hales viands indicted, by the name of
Willium Hales, late of London, goldsmith, for
that he bein^ a person uf eril fame and conver-
salioD, oiid enileavoiirins Samuel Edwards, esq.
and divers others willingly to defraud, on the
lit of Juntr, in the parish of , had in

his custody a certain note, bearing date May
11, 179tJ, by which note it was supposed, that
Mr. Robert' EJalest dill promise to pay uuta

t This Robert Hales, Mq. Jan. -17, 1138-9,
was tried at the King'a-beiich bar, Westmin-
sler, liy a special jury of the county of Mid-
dlesex, of which lir George Waltcn, koL waa
fon-man, on an iodictoieut tor a misdemeanor,
lor that llie said Robert Hales, esq. wonM ba*S
defrauded Samuel Uilwanls, esq. of BOOf- by
mean* of a note, drawn by the aaid Robert
Hales, esq. lor a/Ml. ])Byable to Samuel Ed-
wards, esq. iir order. TIm paper, on which
the said Note waa drawn, hatinif the n
the said tftuiiBct Edward* 01

livlnck 11

811]

S GEORGE IL

Trial ^WiUiamHatii,

[»«

Samuel Edwards, esq. the full sum of 800/. ;
aiid that, on the same note, with an intent to
defraud, in the parith aforesaid, he did frawtu-
l^Dtly and deceitfully, on the IStb of June,
forge and counterfeit a certain indoraement, to
the grreat dama^^e of the said Samuel EdwardH,
esq. to the breach of his miyesty's |>eace, and
the ill example of his majesty 'a snbjeclfi in like
case offending'.

Mr. Siraniie. May it please your lordship,
and you (rcntlemen of the jury, the |irisouer at
the bar, William Hales, standeth indicted for
forgiu;;, counterfeiting', and publishing an in-
dorsement of Samuel Edwards, esq. on a pro-
missory note. The indictment sets forth, that
the prisoner did endeavour to deceive and de-
fraud Samuel Edwards, esq. and othen bis
majesty *saubjects, having in bis possession a
certain promissory note, under tne hand of
Roltcrt Halc«, lieariug ilate Ma^ 17, 1728, by
which note, this Robert Hales is supposed to
promise to pay to Samuel Edwards, esq. or
order, a certain sumof bOO/. having this note in
his custody, did forge and counterfeit, and
caused to be forged and counterfeited, a certain
indorsement ou the same note, viz.

» Pray pay to for Samuel Edwards."

and having in his custody the said note for
800/. payable to Samuel Edwards, esq. on
which there was so forged an indorsement in
the name of the said Samuel Edwards, esq. did
publish it to be a true indorsement, knowing the
■ame to be so forged and counterfeited. This
is laid to be to the great damage of the said
Samuel Edwards, esq. the brewJi of bis ma-
jesty's peace, and the ill example of bis ma-
jesty's subjects in like case offending. To this
the said defendant hath pleaded, Not Guilty.

only as a frank of a letter to be sent by the
post ; he, the said Robert Hales, having no
dealings i^ilh the said Samuel Edwards. The
trial lasted seven hours, when the^ury brought
bitii in Guilty. But in June following, he
pleaded his majesty's most gracious pardon in
the Court of King's-bench, for the said offence.

Mich. Term [tlie year of the King is omitted],

Geo. 8.

DoMiNts Rkx vert. Robe&tum Hales.

** Mr. Attorney moved for a trial at bar on
an information tiled by him for forgery. Uui
it not being carried on at the expence of the
crown, but of a private prosecutor, the Court
held, that he miwt make out the usual requi-
hites to bring it to the bar : so the motion was
denied. And, at anotlier day, Mr. Attorney
moved, on an authority from the king to pro-
secute, and it was granted as of rigiit to the
king in his own cause. And in HiU set|uen'. it
was tried, and tlie defenilaut convicted. And
in Trin. sequeu*. being called to judgment, be
nrodnced a |iardon, which was allowed ; and
being only for a misdemeanor, be was not pnt
to go to toe bar, or plead it u|>on his knees."
8iniif«i vol. 8, p. 816. Farmer Edition,

Attorney General, Mv lord, and gentlenm
of the jnrv, I am counsel on the aame side, for
my lord the king. The charge against thed^
fendant, William Hales, is for forging an in-
dorsement on a promissory mite, to Samnel
Edwards, oq. for tbe biho of 800/. Tbe boIb
was made in the name of Robert Hales, for
800/., payable to Samuel Edwards, esq. sr
order. And, gentlemen, it will appear, thai
the prisoner hath been iruiltv both of tbigisg
this indorsement, and of publisbing it kMv*
ing it to be so forged. Gentlemen) tnis Samsd
Edwards, esq. bath a considerable empfoyeil
in the Exchequer, and is besides a membsref
the House of Commons, and by that bath the
privilege of sending his poa- letters free. Il
was his misfortune to lite in the neighbourbosA
of Mr. Hales, in Duke-street, in \VestminsMr.
The opportunity for committing of this (rmnd
seems to have kfceu in this manner : Mr. Haka
used frequently to^ apply to Mr. Edwardii
sometimes by binwelf, sometimes by a servant,
for frank covers of letters to send news into thi
oonntry. The gentleman's crood -nature in-
duced 'him to accommodate him according «
his desire with them, supposing that they wen
only designed to send news to his friends in tbi
oountrv. He having possesseil himself si
several pa|iers thus subscribed, it will appcsfi
tliat most probably he made use of one or tbcsi
franks to commit this forgery. The fwrsery ii
an indorsement ou a note of Robert llaki
The note is thizt :

«* Aftfy 17, 1798i
'< I promise to pay to Samuel EdwardSi siq.
or order, eight hundred pounds, three nonlbi
after date, value received.

" Robert Halib.*

The Indorsement is thus :

*' Pray pay the value of this to , Ibi

raloe received. Samuel Edwards,"

1'his indorsement being thus wrote over tbi
name Samuel Edwards, gentlemen, it apjpcsn
by the face of this indorsement, that it isca
off from another writing. There is the tail o
a letter, which manifestly apiienrs. The won
' the ' is wrote with aii abbreviation y. Tba
wilt appear to be a wonl altered from some
thing else. It is difficult to tell whether li
read it fory«, or which looks like tbe troth s
the case, for * ye.' It will appear to be ver
; probable, that the manner of forging was this
having possessed himself of these franks, h
cut off a piece of one of these franks proper In
a promissory note to be wrote on it, whid
would have on the back of it the name of 8a
niuel Edwards. When he had done this, b
did not think proper to write the note hiowel
but got another gentleman to write a proow
sory note ou the back of this paper, payaUol
Samuel Edwards, esq. or order. When tbi
was done, the name Samuel Edwards ssns
for sn indoraement on the note. And the ftlM
ration seems to have been made in tbe iblloM
ing manner: there being tbe word 'ffsa
wrote over the saaei tbtro is Ike Isttsr

say

^r a Mitdemeanor,

A. D. nS!).

[?14

umM m between the f and the r. At to

§i«'ttfter tlie r, the use made of them is

ill : set ef the one of them is drawn the stroke

fcrdM tetter jr, the latter c stands on ooe side,

viMher above the y, and makes y^. Ha? ing

tesMs, U eppeew, that here is a promissory

vis, a the nune of Robert Hales, to 8amuel

M^■i^ een. end here is an indorsement of

■r. Vsaiiel Edwards, by which, by virtue of an

ad rf pafiaineiit^ which makes these notes

aad tlie indorser liable, Mr. Edwards

iaUe 16 the pajrtnent of this note. The

_Jb of this note ts this, to raise monejr

ity and atake the credit of Mr. Edwards

MfMily for this money. Gentlemen, hav-

i^ dsae ihia, he applies to Mr. Harle, to bor-

MWflf Ues a certain sum of 450/. He knew

Mj weH, that hia credit would not serve for

im poraese, he beinf a known bankrupt ; but

Mnd dfeat Mr. Harle would lend bim 450/.

CI te credit of this note. Mr. Harle knew
Mr. Edwards was a gentleman of great
Mfit: il wta a promissory note of 800/. pav-
dHi Is SaoBuel Edwards, esq. and indorsed by
HavEl Gdwards : Mr. Harle made therefore
adsA of advancing the money desired upon
it The anaDner of adrandng this money was
1^ Ihb Harle's making a draught upon his
(PMhMm, Mesa. Caswal and Mount, where
Mr. Brica received this money . Gentlemen,
ttat wiH be evidence to charge this upon Mr.
Uhl Gentlemen, the occasion of disco ver-
iig im leiwy was this, Mr. Hales having
M Cihen op in September last, ou another
iasPWf of forging a note of Mr. Gibson's,
feettA he was convicted last sessions, that
chkI a pretty deal of noise. And, gentle-
■ca,neh as had notes of Mr. Hales for their
wswiiy, were alarmed ; Mr. Haile heard of
liufasMog others, and the thing thus coming
isheiaipured into, it appeared plain Mr. £d-
««4k nd no dealing wiin them, but it was a
faifery and an imposition both upon Mr. Ed-
ewdsand Mr. Harle. We will call the wit-
HHst, and then we apprehend, that the thing
aQ speak for itself, and will appear a plain
lM|cry.

I$cr). Wkiimker. My lord, there are a pretty
■say indictments, and Mr. Attorney hath
•Msd the cause : therefore we shall imme-
wdy caU the witnesses.

noBMti Maddockt sworn.

8n]. Wkiimker. Whom do you live with ?
Uiddncki. Mr. Edwards, ^r.
Unj. Wkitaker. Where duth he live P
MU^oekt, In Dnke-strtet, Westmin!4er.
M. Wkiimker. Where doth Mr. William
Ukver
MBddorkt. Within a few doors over-against

way WkUmlur. Will yon give ns an ac-
•M, whether Mr. Bales hath ever sent for
49 ftaaka to year master f

Msrfdtrto. Yea, 8ir, several times.

I«i. WkiukBr. What nuumer of franks
IhayP

Maddockt. There was alwsyf some super-
scription.
Serj. Whi faker, Vho had them of you ?
Maddocks. His man had them of me. They
were sent bv him to Mr. Hales.

Serj. Whitaker. Will ymi recollect whether
there was ever any request to you, thnt tl.ere
might be some only free without any euper-
scription ?

litaddocks. Yes, Sir ; there was in the be*
ginning of July last.

Serj. Whituker, How many were there of
them?

Maddockt. There were half a dozen.
Serj. Whitaker. What came of them?
Maddockt. I have five of them here. The
other, 1 believe, is torn.

Serj. Whitaker. Did you give them to Mr.
Edwards? — Maddockt. Yes, Sir.
Serj. Whitaker. What answer did he ffivof
Maddockt. He said, when 1 delivered bim
that message, that he never did such a thing ;
and that be would not do them without a so-
perscription.

Seij. Whitaker. Were there any afterwards
sent without a superscription ?

Maddockt. About a week aHer he came

again, and I told him, that my master would-

not do it without a superscription.

Serj. Whitaker. Were they after%vards left P

Maddockt. Thejr were left with 'a young

woman that is now in Court.

Serj. Whitaker. Are those they that were
delivered to you by her ?

Maddockt. Yes, Sir : one is, I believe torn.
Those are the other ^ve.

Mr. Hungerjord. Have you been long ac-
quainte<l with your master's business?
Maddockt. Yes, Sir.

Mr. Hungerjord. Have you ever known it
to be his practice tu gi? e promissory notes ?
Maddockt. No, Sir.

Lord Chief Baron Pcngclly. It i^ proper
you should ^ive an account where Mr. Ed*
wanis lives ?

Maddockt. In Duke- street, Westminster.
' Lord Chief Baron. And where doth Mr.
Hales live?

Maddocks. Within a few doors, almost over*
against Mr. Edwards.

Jjord Chic/ Baron. How long since was it?
Maddockt. I btrliere that it might be three
or four years ago.

Att. Gen. There were (I apprehend yoa
say) several that were franked ?

Maddockt. Yes, Sir, there were frequent] r,
Att. Gen. How long might this continue r
Maddockt. I believe several years. It was
since the time of his living in our neighbour-
hood, which I believe, may be about tnrse or
four years.

Att. Gen. Do yon know of any other bu-
siness transacted between them ?
Maddockt. No, Sir.

Mr. Strange. You sa]^ that these coferi
were brought and left with the maid. Vo
you?

S15] 8 GEORGE II.

Maddocki, Yes, Sir, these are the same that
were left with the maid.

Mr. Strange. You saji yon delivered the
fraoks to Mr. Hales's servant. Do you not ?

Maddocki, Y<:8, Sir.

Mr. Strange, What was his name ?

Maddocki, Robert Hunsdon, Sir.

Mr. StranRc, Did yoa ever deliver any to
him himself r—Mia</£/oc^. No, Sir.

Mr. Lacy, Had the franks that yon deliver-
ed the whole superscription?

Maddocki, Yes, Sir.

Mr. Lacy, They asked you, whether there
were any dealings between your master and
Mr. Hales, besides this of letters. I would en-
quire of votty whether your master acquaints
you with bis dealings with any other persons f

Maddocki. No, Sir.

Anne Clarke sworn.

Sen. Whitaker, Had you a note of direc-
tions for letters to be franl^ by Mr. Edwards?

Clarke, Yes, Sir.

Serj. Whitaker. Who brought it ?

Clarke, Mr. Hale's servant.

8eij. Whitaker. What was his name ?

Clarke, Robert, I think they called him.

Bmrj, Whitaker, Do you know whose writ-
ing it was? — Clarke. Vo, Sir.

Serj. Whitaker, We shall, mv lord, call
another witness to prove that it was Mr. Hales's.

Serj. Whitaker, When was it?

Clarke, 1 cannot say.

Serj. Whitaker, Was it summer or winter?

Clarke. Summer.

Serj. Whitaker, In what month was it ? •

Clarke. I believe that it Was in July last.

Sen. Whitaker. Did you deliver them to
Mr. Edwards f-^Clarke. Yes, Sir.

Serj. Whitaker, What did you say to him,
or he to you ?

Clarke, I told him, that Mr. Hales's servant
had left that paper of directions for the franks
that he had desired ; and said that his master
understood that he would nut frank them without
a superscription, and therefore he had sent that
paper of directions. He said then that be did
not care to frank them, because Mr. Hales had
both a brother and a nephew that were mem-
bers of parliament, and therefore had no need
to apply to him for franks.

Serj. Whitaker. My lord, we shall now

Erove the paper of directions to be Mr. Ilaies's
and- writing.

Mr. Booth sworn.

Serj. Whitaker, Sir, Are vou acquainted
with Mr. William Hales's hand- writing ?

Booth, Yes, Sir.

Serj. Whitaker, Whose wriliug do yon take
that paper of directions to be?

Booth, I verily believe it to be Mr. William
Hales's.

Serj. Whitaker, My lord, there is something
Tery worthy of observation as to these direc-
tions and covers. The covers are very large.
Tht dinctuHii ar« extremely abort, e, g. for

Trial of WiUiam Hales,

[81ft

John Pratt, esq. Bristol. The whole direcCioo
is but one line, which wouM consequently leave
a great deal of room. Another is to Mr. Lsvctt
ofHuntiiMnlon. And there are two to each of
these. The other two to Stephen Mitford^
esq. at Exeter. The man gave an acoonnt of.
six covers sent to be franked ; there are two la
each of these, which very well agree.

Serj. Whitaker, You say. Sir, that thia it Ihi
hand- writing of Mr. William llalea f

Booth. Yes, Sir.

Serj. Whitmker. 1 would ask, whether ilk
common for a person that hath a piumi— y
note to write his name thereon ?

Booth. I know not. Sir, that it is comHNB*

Note of Directions read t

Two to John Pratt, esq. Bristol.
Two to Mr. Levett, Huntingdon.
Two to Stephen Mitford, esq. Exder.

Mr. Hcrr^e sworn.

Serj. Wkitaker, Let the gentlemen of tha
jury see the directions and covers.

Serj. Whitaker. Gentlemen, you wiH slaano
the size of the covers, and the shortneaa of Ihi
directions just fitted for the purpose.

Sen. Whitaker. Mr. Harle, please, Sr, la
take that note in your hand, and give no ■■ ao*
count who you received it from ?

Harle. From Mr. Hales.

Serj. Whitaker. When was it?

Harle, To the best of my remembnuMo it
was Juoe 13th last.

Seij. Whitaker, Will you give us as oeosMt
on what account it was, and what Mr. Haht
said to you when he brought that note ?

Harle, Mr. Hales on the ISth of Juno hH
came to me, and brought me that note firoBi a
gentleman.

Serj. Whitaker, Where were you?

Harle, To the best of my remembraneo, at
Baker's coffee-house in Exchange Alley. Bo
desired to borrow of me 450/. upon the cr^it
of that note ; I accordingly made him a
draught on Mess. Caswal and Mount, with
whom I left my cash, fur that sum ; for a aoai!
rit^ for which he left that note, and he pro*
mised that he would pay it in a few days.

Serj. Whitaker, Did he take any particolio
notice of the indorsement?

Harle. Not much J Sir.

Serj. Whitaker. Was it then indorsed ?

Harle. Yes, Sir, I am sure it was ; for I
was desiretl to lend the money on a note so in*
dorse^l-

Serj. Whitaker, The note then, upon this
occasion, was left in your hands alter that it
was so indorsed, Was it uot ?

Harle. Yes, Sir.

Serj. Whitaker. U|>on what occasion did ife
happen to be suspected or discovered ? Did yoa
pay it yourself, or 3^ our golusmith ?

Harle, Mess. Caswaland Mount, on wl
I made a druuirlit.

Sen. Whiiakcn HoTO you that dnnglftf

HarU. Yea, Sir.

Jw a MUdaneoMor.

MWHi^er. It h«Ui been deUtered up,

USr-Jfarfe. Yci»8ir,aiMlcaiieeJled.

44Kiibr. Ob wlmi occuioa ?

[ «Ul Wkn I Mllle my ftceouuU with my
illdwap ny Doiet.
ittmgt. YMiwcrafoiiigtogifeiisan
■Mtov yto aune to ratpcct thw note ?
U Ilhnk it wu on September 9, 1788,
tiMhrhiiifB Alley aU the morniog, toy
IfiVfliig flw thither. At two 1 went

, IpmmL It eeeois there woe a nieeiai^

WlOTMffvaiit fay Mr. William Hales,
JitmfM U my iroldsmith 4S0/.» part ot'

'limf vUeh ho owed me; for be owed

H^Moey on aocority. He weut to

[|B«tptti tbcm thie money, for which he

MiMHnodom that Iw uul paid them to

Im^wmgy upon aeoowit. Goiog then to

^ M Gmn, when 1 came home Mr. Cai-

IM m what had happened. There it

l^tad ihiM bath happened; Mr. WiL

llii^ wilh whom yon baTe transactions,

'b m Ibr forgery. He hath |>aid to us

[W. upon your aecouot, which is at-

* i«r bands. It seetna there was found

•book a memorandum which gave

Isf hie paying that sum to them.

Mkiiahtr. Was this the first occasion

[ isy flion ?'^HarU. Yes, Sir.

. WkiUker. Wlvat did you do upon that ?

JAl I bad naked a gentleman, now

bmt,Maie daya before, knowing bim well

with Mr. Edwards, and the affairs

Eiebcquer, whether be knew Mr.

I band- writing, and whether he knew

bke Mr. Edwards's hand- writing? He

4hMieved that it was. I indeed myself

Mid tbat it was. Afier that Mr. ifales

Vths up (I tbiok that it was the Weilnes-

%t Tburiday after), I went up to the £x-

d^tD that gtntlemau to get biro to go

l||ieio Mr. Edwards. lie went up, but

jftlbrirds was not there. ^Ve then weut into

^hll, where we met with Mr. Kdwanis, who

^Mrito be rery much Mirprised. As to the

^faid be) I know notliiug of it. As to the

H-writiag, be could not |>ositively say whe

^ 11 VM bis own or not ; if (sai«l he) it is

^ittsd, it is made an ill use of. We went

^t'iilely to the coffee-house to enquire after

«ihbert Hales, thence to the Cock- pit,

Jl'lhice to his house ; but met not with

J^l tben left Mr. Wright atui Mr.

''irit. i told them that my buitiness

^nd me to go into the city. They re-

*N to meet Mr. liobert Hales, and enquire

^h« whether it was bis note or not.

L C. BcTOM. Head the note distinctly.

X«te read, " Matf 18, 1728.

** I promise to pay to Samuel Edwards, esq.
* trur, the sum of eight hundred noutids
*i|^ three months after dute, for value re-
^hl. KoBERT Hales.'*

bdofiement, ** Pray pay to the order
of foryc value received.

** ISamuel Edwards."

A. D. 179^ [tlS

Draught read, «* kt. Mess. Caswal and tfoont.

«< June 13, 1798. Pay to Mr. William Hales
or boarer, on demand, four hundred and Afty
pounds. RoBBtT Harlb."

X. C. Baron, Sir, you say that yoo are ae«
qnaintcd with the band-if« riling of ftlr. EdwaMf.
do you not? — Har/<e. No, Sir. ^

Att, Gen, My lord, we beg that the gentle-
men of tlie jury will look upon the indorse*
meut. But before it be put intd their hands, {
would make an observation thereon . It ap-
peareth by the end of the paper that it is cut
off from something else. It is not straight as
it would be naturally, hot seems cut off 0Miqae>'
ly : And there is the tail probaUy of a letter
of the direction of the cover whence we pre-
sume it cut off. Then the wurds, * Pray pay
to the order of,* at a distance from the othc^
words, * for the valoe received.' There is this
material also, that the words * for the valne re*
ceived' are not usual words in an indorsement ;
when the words * value received' are mentioned,
still more unnsnal to put in the word * the'.
But the word ^ free' being there, there must be
some way contrived to nse those letters : An e
is therefore crowded in between the/ and the r :
And tben the y seems to be a much blacker
ink tlian the rest : And then as to the two re*!,
the one of them the y is drawn from, and the
otiier of them stands for the other part of the
contraction.

Serj. Whitaker. liook on it, gentlemen, and
you will find it as mentioned.

Att. Gen, Observe, gentlemen, over it them
is a stroke or hook.

Mr. John Spicer sworn.

Att, Gen. Mr. Spicer, What employ meni
are you in under Mr. Edwards f

Spicer, A clerk, Sir, in the Exchequer.

Att, Gen. How long in that capacity ?

Spicer. About ten years in that capacity:
But in ail I have served him for 24 years.

Att. Gen. Have you known in all that time
any mouey-dcalin^s between Mr. Edwards
and Mr. itobert, or Mr. William Hales ?

Spicer, No, Sir.

Att, Gen, If there had been any, do yoil
think that you bhould have known it?

Spicer, Yes, Sir, I believe that 1 should ; for,
as to affairs of that nature, 1 believe that J know
as much as auy except himself.

Att, Gen. Look upon that note. Do you
take any part of that note to be his hand*
writing?

Spicer. The name is his ; and they I believe
is his. As to the other letters they are so al-
tered that I cannot say. * Value received' is
not his.

Att. Gen, Are you acquainted with his
writing ? — Spicer. Very well, Sir.

Att. Gen. Have you seen him frank letters?

Spicer, Yes, Sir.

Att. Gen. What is his method of franking?

Spicer. • Free Samuel Kduards.*

Att. Qen, Doth he write the word * lire^* *

219J d G£ORG£ II.

Spicpr. YiM,Sir.

Att. Gen, What sort of/ doth he rnhkt?,
' Spker, A sort of double /just such as is
faere.

Att Gen, Do you take the letter o to be his
hand'Writiog?

Spker, It is an altered letter. It was some-
ihing else turned into an o.

Ait, Gen. The r, what is that, doth it not
«ceni to bare been another letter?

Spicer, Yes, it seems altered from another
ktter; but bunglinfflv done.

Serj. Whitaker, We wiU^ my lord, call oueof
Mr. Caswal'a apprentices to prove that th»
^ught hath been complied with.

Mr. George Branthwait^wom.

Serj. Whitdur. Do you look upon that
flight. 00 yoa remember whellier it was
«?er brought to you, and by whom ?

Brant^aU, I beliere it was brought by Mr.
Hales.

Serj. WhUaker. To your

BratUhwaU, Yes, Sir, and it was marked by

8eij. Whitaker. What had he for it ?

Branthwait, He had ofme two notes. One
was for 850/. the other for S90/. which was
470/. and he brought besides this draught two
notes of Wanley's for SO/, which made the
balauce.

Serj. WhUaker, Whom were they payable
to?

Branthwait, One to oue Calthrope, and the
•tber to himself.

£. C, B, You say there were two notes you
ga? e him. Whom was the 250/. note payable
to?

Branthwait. To Mr. William Hales.

L, C. B, And who was the 320/. note made
payable to?

Branthwait. To one Charlton Thrup. He
gave me this draught of Mr. Uarle'tf tor 250/.
and notes of twenty pounds.

X. C. B. Whom did you say the 220/. note
was onade payable to ?

Branthwait. To one Charlton Thrup.

Att. Gen. My lord, we have done with our
evidence.

X. C. B. Well,* what do you say to this ?

5eij. Darnell. I have nothing material in
mine instructions ; therefore, i shall not trou-
ble your lordship.

Mr. Lacjf, 1 take leave to observe, that it
doth appear that no prejuilice is done by this
note. The 450/. borrowed on it hath been re-
paid.

Att. Gen, Mr. Hales owed Mr. Harle uio-
ney upon other accounts, and he had it upon
account: And besides, it is attached in the

S'oldsmith's hands, and it was on the very same
ay that he was taken.

X. C. Baron. Gentlemen of the Jury, this is
an indictment against William Hales, gold-
amitb, for a very great misdemeanour. It is
for fbiging an indorsement on a promuiory
note Ibr 600/. for the chaipog of the pcnon

Trial of WaUamHakB,

indorsing with the payment of this son
tlie publishing of this indorsement as
one, knowing it to be so forged. It is
great offence, a misdemeaooor of the !
nature ; not -only as it afltos particuli
sons, and chai^^es the person whose n
made use of with the pay noent, but as i
stmctive to all commerce : You are tfa
to consider what account the defends

Sive of it. The indictment sets forth tl
efendant bad in iiis custody a certain i
a writing, purportiiigto be a promissor
with the name of Robert Hales; by
note it was supposed, that Robert Halt
mised to pay to Samuel Edwards, esq
order, the sum of 800/. within three
after date. And upon this, the chari^
indictment is, that the defendant, witfa
^tion to charge Mr. Edwards with tl
ment of the money contained in tbia ii
note, and to delraud and deceive hi
others, on the iSth day of June did
and deceitfully forge and counterfeit a
indorsement on thisnote in these Englisl
following: ** i^y psy to the order of
the value received," over the name of
Edwards, as if subscribed to that indors*
and, that knowing the same to be a fur|
counterfeit indorsement, he published tl
in order to deceive several persons, the
subjects, as a real indorsement, as wc
defraud the said Samuel Edwards, esq.
in order to prove this, the counsel ga^
account of the circumstances of the del
the character of Mr. Edwards, the ac
ance between them as neighbours,
shew you the circumstances of the fai
have called several witnesses: Firs
called a servant of Mr. £dwards*s, wh
tiooed that he had lived some coosideral
in Mr. Edwards's service ; during wbi
the defendant, Mr. Hales, hath irequci
several years, sent to Mr. Edwards
franks delivered him in the name of 1
wards, who hath for some years been a i
of parliament, in order to send them
the postage. It appears that this ha
done for several years; and the usui
was, when Mr. Edwards had received
rection of the name of the person, he
wrote the .whole superscription, and tli
scribed to frank it ' Free Samuel Ec
He tells you, that in the beginning of Ji
several covers were brought to him for
made up as you may perceive prett;
The covers were brought orer to Mr. Ei
bouse by a servant ot Mr. Hales*s. T
sage was, that Mr. Hales desired soon
upon these covers, particularly desirii
to be franked without any superscriptic
saith,that these were left in this numi
were all delivered to a servant of Mr. 1
with this desire, that he would on]
thereupon *' Samuel Edwards free :'*
rest might be left to be6lled up by Mr. ]
be thought fit He tdb yoa, thai w
mastor came honei hit maater tunriii

0 M'udemtann.

UmMiniiewholeiupef ,
lo ilo this; anJ
r«m mnaiDnl wilbout frank-
b wiihIiI nut ii(xi>iiim'Hlite
Mr. Bile!, in ihal maiiDer wiili
to kaad. uid Icate llie Test lilniik lur anutiier
|MMUfi<l U|i us lip iliDuelit 111. This OUll
imj pWriilly ilorir; Hr. EilwHrtIa, wlio in h
■bAmm IB husDni, iiii|[|j| well spprtliend
MINSfpi'ituiiily niit(bt Iw liereby girpn (o
MHfw^tf* lliM H might nulbeiii l)ra)>ni*«r
■•■nmul. Tliia, gentlemen, U made luc of
>p«r uf an attempt bv ibe ilelrndanl. to gel
Ntt wrl •■' I'rankt into hit power lo make uie
#li Mcb n MriK>*« as (liii. The next wiineM
iMtbry ulU It Ar>Ke CUrke, who Faith
dMikitlilwiniea semnito Mr. Edwordf,
wrillen Ij Mr.
lat ihii was brought to
of Mr. Edwanit, with a deure tu
' fr«nk» liiiectfd lo cai^h of those
*i> to Mcb ut' tbeoe lliree several
Mite aailb, that it was soniR lime lait

h4 i^ pniiiiKirib
Bi^ m4 M<ih, il,

M^M*. *l>e thintit atwiil July.
te >bm her mtsurr. Mr. Kdn:

Kite SI

(titiog

a bim : and Mr. Kil-
ir accommodaiinff Mr.
tlii-ae persons. The
Ihli; Mr. Hale* (Mid
a nepliew that are

Mi ouh franki
MBIhat iMfrave was ihi
ItflMkbolii a braiher and
•i^wa iif the HiniBv iil tJ»mmnna ; anij
IhniM ha need mil «eud lo me tiir franks,
^« ke vn»y bare Ihein from his own rela-
tWI b* Umrhre declined il at Ihal time.
Itat vera tin ilirectinnt : Two to Mr. Lervll
4 laMiiiirdon, Iwo m Jidin Pratt. va\. at
h»t,lHu to Stephen Mitt'iinl, e«q. at Biiilnl.
takairii. to c^rrobnratt this evidence Uinl
«»Ma nuc rroni the defendant Mr. Hales,
kr.tlMilt It called. He ia aike<l. whether he
•wdl aoqiMiiiled witli the hand-writing of the
M«rfM>l,Ur. Ilaln? Hesailh tbalbeia, and
iH bp •cnljr briiere* that this note Is bis
tori.vntm^. It balh bt«n tririerTed by Mr.
that there veeitiH to have beeii some
tlwfnnn wherein it is wrote being >ery
an opfKirtiinit; lor an alteraiioQ ;
if ibaae directionn a very short, and
«p U oMift but one line on the su-

oaUnUrot tlie cover; ihal there

m a conaldenble space lelt, so
e, MaiDurl Edwards, ivna wrulr,
^■B wuold bate been a sulficient space oi'
na In wnte a note nr any ihintf oter it.
BM b the afaierraiion thai hath been made
^Xlbia no«i- •■' drmlions. Aller this they
fttta Mr. Kiitirii Hifk', who it secretary to
tiwOsM bank, !■> hiirpm In the jiarliculaT
k. Ue wilb, that thii note wn« on the )3lh
'lancUit brau^ht and delivered to bim by
kiMn4a>t Mr. \Vitl>am Hale*. He sailh,
kt he was then d1 Raker's mifiee- bouse in
h*Mfp-alUy : ibut Ibe dufcndUDI, Mr.
■A^ ^nM la hini, «iid produced Ibis very
%tf WWt. payablr to Sniniiel Edwards, mq
~" "■ lubsmbcd Robert >lah>«,

" iidwardt,

A. D. 17S9.

iitd de«ired him lu advance bin i50!. upon llie
credit of that note; Ihal seeing a proinisaorf
Dote njnde payable lo Numiiel Eilwnrda, esq.
-.nit imloneit by the said Sninuel Edwards, esq.
Ilia appeared to him «ii<iioieut seouriiy lu lend
4Si)f. upon ; Ihal tie did tltereupon cnntply
>vilh ilierequnt uf the dufemlaat, Mr. Willinoi
Hales, III ndvsiice bim thaltumi ihatbedr«w
a draught lor i( an Casual and Moant, wbo

settling of his accuootii with bis goldsmiths ;
that at that lime when Ihe defendaut brouKbi
this note to him, this very note woa delivereil
la him, with tbis very indursemeiit Ihal is novr
upon it,

" Tray pay to llie Order of for j«

value r<:cdred Simuei. Edwards."

lie saitb, that he is sure that it was (bus in-
ilcirsnd when il was left with him, he being de-
sired to lend Ihe money on a note si> imlorsed i
Ibat it hath l<een in his cnstody ever since, sn
chat he ia snre iliere hath been no alleralton
made tberean since lliat il itas delivered unin
him. You may n'membrr that he was parti-
GiiUrly asked, are yon sure that il was indnrwd
when il »as delivered you? Hesailb that b*
is sure; and indeed the thing bespeaks itaelf.
' n'hen a note is made payable to a particular
|)efBon.if any other person brings il, every one
expects lliat Ihcrc sbotild b« an initorsement
to inlitle any pertiiin that Is not the very person
to whnm il wni made payable. 1 am there-
fore lure (saiih he) ihal it was so indorsed:
anil Bs Mr. Edtrards was a iierson of rerj
great dealings and considerable sulislance, anil
BO likely to liave sach a note made jnyabla
to hira, I therefore gave credit to this note aa
a sufficient security to reimburse me the ihQt,
i*hiGb 1 advanced thereupon.' This tact ha
tells you was thus transacted at thai time;
and he ia sure that he received it from Ibe dc-
feiidant thus inilorsed, and that the drtendant
hath hail the benefit uf the draught which ha
gave him on the credit ihereol. Mr. Harle
hath ullowed this in settling his account* with
his goldsmith. Upon ibis the nule hath been
read lo sbeir you the purport thereof, and the
indoraemeni thereon. The note is this,

" Wau J3, 1728,
*■ 1 promise lo pay to Samuel Edward*, esq.
or order, the sum of eight hundred pounds,
within llitee tnoutb* after date, for value re-
ceived. " RoaERT HtLEa."

Tlicn upon the back of Ihe m

elben

stbit

Mr. llarle goelb on In the account which be
gives you, and snitli thai Ibis nule was leti ia
his hands in June ; and that ou Sept. V, after,
he was in Ekc ha age- alley aJI the luorniug till
bIhiuI two ; that theie was a message left for
him at Uakci't colTee-hoiite, bat he received jt

8CS]

3 GEQKGfi n.

not there ; that he went honie, and heard that
there was a message left for him hy the de-
fendanc, Mr. Halei, at Baker's coffee- hoasej
that he went out in the afternoon, and had
not a particular account of the message till he
came home. The message was mm Mr.
Hales, that he bad that morning paid to his
goldsmiths Caswal and Mount 45o2. on his ac-
count: Mr. Harle tells you that there was
more money due to him on security. So much
money was then pai<l in discharge of so much,
part or money advanced by him to Mr. Hales,
and It wss the exact sum which had been
advanced on the Idth of June on the credit of
this note. He tells you, that in the erening
Mr. Caswal came U> biro, and told him there
was a melancholy account, that a sad accident
had happened: for Mr. William Hales, the
person tnat had paid them this money on his
account, was taken up for forgery, and this
money was attached in their bands for to pre-
yent bis issuing it out. Mr. Harle tiills yoo,
that this was the first discovery that bo had of
the particular fact, that gave him oecasion to
make the more particular enquiry : he had in-
deed two or three days before sfioke to a ^n-
tlemaa of the Exchequer, one Mr. Wright,
Imd shewed him the indorsement ; and having
tooaesttspicioo, asked him whether lie was ac-
qaauitnl with Mr. Edwards's hand, and whe-
llier be thought that that was his hand- writing ?
Mr. Wright tho«g;|it it was a little odd, uav
joaMbiog di6Ment, but believed thai it was
Mr. Edwanls's hand, aa Mr. Harle himself
also thooght that it was. He saith, that after
Ibat the defendant was apprehended, he went
to Mr. Wright to desire him to go with him,
that they might have from Mr. Edwards more
particular satisfiiction. They went and met
with Mr. Edwards, in Westminster- hall,
shewed him the note, asked him whether he
knew of it, and whether it was hu indorse-
ment? Mr. Eilwards waa very much startled,
end said, that lie never gave any such note,
and knew nothing of it. Mr. Harle asked him
whether the name wss bis liand- writing? He
said that if it was, an ill use waa made of it
Mr. BUwanIs took a copy of it, and kept it
by him. The note hath been read to yoo, and
appears to be a promissory note in the name
of Mr. Robert Hales, for 800/. payable in three
months, to Samuel Edwards, esq. The iudorae-
meot is

** Pray pay to the order of for y«

value reoeived, »Samuel Edwards."

Gentlemen, Ufion the producing and reading of
this note, Mr. Attorney bath made several ob-
servations on the manner of m riting it. You
have bad the inspection of it, and something
very' particular appears to every one's view. It
is by the uounael for the prosecutor supposed,
that this mtie must be formed from part of a
iraok cover signed * Ifree Samuel Edwards,'
Jfree being turned ■ into far ^ value received ;
that there is the Foraainder of anoiher letter.
Awl yen may ehs^iTe erbethcr there is east*

Trial of WiUiam Hales,

▼edge or any thing of that oatvte, thi
h to have been the outside of a sheet
All the edges indeed seem to be so
dean as a paper that is cut. Th(
ment begins, « Pray pay to the ordei
for' then comes y«, and then a laigi
between that and * value received.'
seems pretty extraordinary if any
honestly writing, and had a paper not
before, that they should write in thi
that the word y« should be tacked to

* for,' and put at such a distance froi
reeeived.' * Received' follows * vali
diately in a more plain writing : be
unusual to make use of the word
*- value received ;' but they say it is
nerally * value received.' You ha
stance in the note itself; the conclui
note is * value received :' and I belir
aervation is just ; that it is not so us

* For ye value received.' But the ol
of the counsel was this, that there v
cessity of this in order to aocomm
leuers to the forgery ; as the words
they exactly suited. And, gentlem
is of a paler ink than the or, and thi
thicker, and seem of a deeper ink.
were two m's before, the alteration an
the other letters roust occasion the tb
these letters, and their seeming of
ink. Other letters being to be supc
they^ must of necessity be thicker ai
than the first letters. Here is a ver
sort of an r, and the o seems very
the end of the r is something made
assist to make the upper part of the
doth not stand cleverly. And you
that part which is the head of the
thicker than the other part that mal
y. And then on the side or one si
the y there is a sort of e put. You
how improperly it stands. It is not
rectly over the y, which is the way 8
of writing ' the' short; but it com
bottom ot the head of the y. So tha
men, these are the observations that I
made by the counsel. You have
note, and may observe upon it, wh'
think these observations plain, proper
Upon this occasion, another servai
Edwards is called, one Mr. Spicer.
that he hath been a clerk in the £
above ten years, but in the whole in
wards's service upwards of 30 yeitn
is well acquainteo ivith bis public de;

Krivate transactions in money- matters
e never knew or heard that he had an
dealings with the defendant, which h
he should, if there had been any, being
and acquainted with his muney-dealii
he saith, that as to the name Samuel
be believes it to be Mr. Edwards
hand- writing, being very well acquai
his hand. And he saith, that as I
doTMflMBt, he believes that the / k
Aot the other letters ; that he is aati
< ?atae KOBived' is aoC Mr* Edsmda'

tiSj

Jw a Misdemeanor*

A. D. 1729.

[S26

And he nitht that the o aud r he doth not
tike In be Mr. Edwards's hanJ-writiogf, but
w akcffatioD from lonething that Mr. Ed-
wards had wrote before ; that the osual way of
Hr. Edwwde frankiiiff iv * frce^ with a ^ as
ynjfree ; and that the o appears to be made
art tf an altered letter- So Uiat this ia a
fnfet tbscnration, that there is ao alteration,
M ihcjf batiere upon their oaths. He saith,
thUja.kuifirUnffly done; that he apprehends
been mentioned. AVeJI, ano«
called, Mr. George Branth-
t to Mess. Caswal and Mount,
that thia draught was brought to

r bj the defendant himself, becanse

ke kath pot bia mark upon it, as is proper for

BMsas of aoeh deaiings ; that that mark of

Hsl Ibc bottom remmds him that the defSm-

tet hrouglit it. Upon the bringing of this

ti^bf, be bad two notes from this witness

SB aeeount of his master ; one was for S50/.

Ar SSO/. : that came to 470/. : there-

ihe deficiency of this draught was to be

' with another to make up that sum

. Therefbre, he saith, that he brought

df Wanley*s for 30/. which made up the

The note tor 250/. he saith, was

laajable to the defendant himself; and

ite it 990L to one Charlton Throp ; and

ta al tfaia time the draught and Wanley's

era delif ered to him for these notes on

afileal'. Caawal and Mount. T^is is

«it given by them. The defendant

and nis counsel are here. Nothing

is aaid by them in defence, only Mr.

lacy osentioneil that there is no damage done

ky&isDOto. the 450/. borrowed on it being

icpai To this it was replied by Mr. Attor-

SIT. thai the money was paid upon account,

fkin being other monies due to Mr. Harle on

MBsrity; and besides it is attached in Mr.

Hirie't goldsmith's hands, to prevent its being

iMcd out. Gentlemen, you will observe, that

iftlus was a real indorsement, it would be an

Mwrance of pacing the whole debt Who-

Mwer iadoraeih a note, whereof no part is

fH4, is liable to the whole. Therefore the

^oKtioQ is not, whether or not this money was

ptJ' But whether here is not an engagement

tipay the note, which the re -payment of the

y borrowed thoreou is do fence against f

Therefore if the money had been repaid, that
had been no acquitting of the crime. That
will no more discharge a person, than if a
felon should say that he is acquitted because
the goods are restored. The behaviour after-
wards is not a sufficient acquittal of a crime.
And consider when thai was. It was not
before, but upon the Monday, the very day
that he was apprehended. Then the message
was left, and the money paid. You are to
consider, therefoi^, whether this did not arise
from an apprehension and fear of a discoveiV«
in order to clear things as well as he could ?
Gentlemen, as there is sufficient evidence to fix
this upon the defendant, so hath he not proved
how he came by this note. lie bath not called
one witness to shew that he had any money-
dealings with Mr. Edwards, or that he received
it of any other person ; but it is left on the
evidence given by the prosecutor. Therefore,
there can be no doubt in the matter. If a
person is silent to t^ie charge, and cannot five
you any satisfaction as to it, it stands as tuUy
fixed upon him as if any had seen him write
the indorsement. Therefore, gentlemen, you
are to consider, whether any thing appeara to
aflbrd the least presumptiou that this waaa
true indorsement made uy Mr. Edwards, for
value received by him? It is, gentlemen, an
offence of a very heinous nature, and, if not
suppressed, must tend to hiotler all commerce
by bills and paper-credit. If this be suffered
to increase, none can take such a note, unlesa
he goeth to the person himself. It will render
it insecure to carry on commerce by notes or
bills. As to au indorsement of this nature,
though it was not mentioned, it is proper for
roe to take notice, that though the name be
not named, it may be made to any person.
The person, in whose possession it is, can go
and receive the money. So that the indorse-
ment is complete authority tu impower the
person in whose possession the note is, to re*
ceive the money, and likewise to charge the
person that so indorsed it with the ie-imburse«
ment of the money. Therefore, gentlemen,
the crime and offence seems complete. U|M)n
this evidence, it doth not seem to me that there
can be auy doubt with you^ whetlier he be
guilty of this fact or not.

▼OL. XflL

897] S GEORGE II. Trial of Wm. Hales, far a Misdemeanor.

473. The Trial of William Hales,* fot a Misdemeanor, in
taining the Sum of Four Hundred and Fifty Pounds,
Mn William Harle, by false Tokens rf 3 Georgi

A, D. 1729.

Jury sworn ova agaiD.

Clerk, OyEZ, Oyez, if way one can in -
Ibrm, &c

Gentleiiien of the Jary, William Hales ttaadt
itidicted by the name of William flales» kc, Ibr
falsly and deceitfolly obtaining the sum of 450li
of Mr. William Harle by a false token, to wit, a
promissory note in the name criT Mr. Robert
Hales, whereby the said Robert Hales is sup-
posed to engage to pay within three months
afler date, the sum of 800/. to Samuel Edwards,
esq. with a counterfeit indorsement on this note
to the great damage, &c. To this indictment
be hath pleaded Not Guilty.

Mr. Strange. This likewise b an indictment
iigahist the. defendant Mr. William Hales, and
is for falsely and deceitfully obtainmg a sum of
money of Mr. William Harle by a false token.
And it sets fbrth, that the defendant haying in
his possessioo a promissory note of Mr. Robert
Haies's for 800/. payable m three months afler
date to Samuel Edwards, esq. with a fbr|g[ed in-
dorsement thereon in the name of the said Sa-
muel Edwards, esq. did falsly and deceitfully
obtain of one Mr. William ftarle, the sum of
450/. on the mid note. Tliisis laid to be to the
great damage, &c.

Mr. Hungerford, May it please your lord-
ship, the fact charged is the ?ery same as in
the former cause already heard, only upon a
different law, Sd Hen. 8. There was, it seems,
•o long agone an abominable practice of ob-
taining money by false tokens. The act of par-
Kameut hath prphibited that practice, and made
It penal. There is but one witness we shall
trouble your lordship with.

Mr. HarU sworn.

' Mf. Hungitford, Mr. Harle, pray gire an
account to my lord, and the jury, when you
first saw that note, and what money you paid
«pon it.

» > I ■

* See the preceding and following Cases.
f These Trials were taken in short- hand bv
•rder of Mr. Edwards. Farmer Ediiion,

Harle. On the 13th of June, Mr.
applied to me, to lend him 460/. npc
note. I accordingly made a draught •
goldsmiths, which I suppose was pa
saaae day, haf mg taken up the drau|
settling mine accounts.

L. C. B. Pengelly. Mr. Lscv, do you
that they should go on further in the
dence? — Mr. Loc^. No, my lord.

L. C. B. Pengelly. This indictm
against William Hales, goldsmith, ll
ootaining upon this note a draught equ
to money, and which afierwards pr
money, oy this false token. If the no
forged, it was a false note. He brouo;
note as a good note, to induce Mr. Harli
commodate him with 450/. thereupori.
is the description of the act of pari!
that if any one by a false token doth ob
gel any thing or any goods of another*!
poral punishment shall be inflicted,
appear to be a forged indorsement ; tbL
a ndse token, he must be guilty.* So t
evidence is the same as to both these
meats.

The Officer sworn to keep the Jur

Clerk. Gentlemen, answer to your na

Jury called over.

Clerk. Are you all agreed in your ver

Jury. Agreed.

Clerk. \vho shall say for you f

Jury, Our Foreman.

Clerk. How say you, Is William
Guilty of the misdemeanour whereuiti
cbaiged, in forging and publishing an ii
ment on a promissory note, or not Guill

Forenum. Guilty .

Clerk. How say you, Is William
Guilty of the misdemeanour wberew
stands charged in obtaining money by
token, or not Guilty f-^Foreman, Guilty

* As to this, see East's Pleas of the i
chap. 18, seel. G.

Triato/fl'm. UaUi and T. KinnenUy.

iT^. The Trial of William Hales and Thosias Kinneuslev,
Clerk, for forging aod counterfeiting a Note of Hand, bear-
ing date August \6, 1727,* for Twelve Hundred and Sixty
Pounds, payable to Samuel Edwards, esq. or Order, signed
Thomas Kinnersley, and indorsed Samuel Edwards : SGeouge
U. A. D. 17Sy.

imy called orer ikg:iip, and tworn.

Cn^. 0YE7^ Oyw. If any one oan in-
km ny InH Uie kin^'i rnMice, ibe king's ser-
^■•^•tknmry. 3cf. ui ini> rause between our
■wuiiyu \orA the king and W illiim Halei ami
IkoM KionecBley, let tbem come farlh, See.
Vu* ihc loaticunent ww read.

lb.Srrdafc Geutlemeuoflhejuiy. This
•U iaifteliiical ■^■imt ibe two priHOUera si
ftihr, fTjllum Hales uf Londun, lale golil-
^itk, aad Tbotnu Kiuaerslvy, clerk. Tbe
Woiacsl acts furlh Ibatthese livo defendauts,
hMfftnons of ill Came atiil reputation, and
^■iif iDil iDleoding 10 derrand Samuel Ed-
■w4,(Ki. aod divers other bis majesty's sub-
^■■,01 Mttreb last had in ibeir custody a cer-
MM(B IT • writine' purporting to be a pro-
■■■rj auto aigned by Tbumus Kinneraley,
miitiM Aog. 16, iTar. lo this noteTbo-
^Sjoner^ey >* suppnaed lo promise to pay
UUJ. USaniiiel Edwards, esq. wilhb three
■atamfter date, far ralue receiied ; that on
AaMtewbicli they bad in their cusloily,lbey
A^ so io<lor«eineul in Ihew words, " Pray
fU la lli« onlcr ol' fur Tal ue re-

omri, Samuel Edwards ;" that thus bating
aMreaMAdy Ibis note with this forged in-
^UMMiM iberrufioii, and knowing this to bea
h|tri isHlimeuieDl, Ibey did afterwards pn b-
U il to bn a true one. These oRrDcea are laid
I (Teat damage of the said 8amueJ
— t tbe breach of his majesiy's
I fill example of other his majts-
I like case offendine;. To Ibis
' have pleaded Not Guilly.

Gcnrrat. Hy lord, and gentlenien
•f the jury, I am of counsel on the same side
ki mj luTil lh» king. Genilemen, the charge
IpBl III* defendant is for forging an initone-
■aMoa • ppTmibsory not* for 1,S60/. Like-
aatlkn arcchargnl willi publishing the said
Malrriat JBilorwiiient for a true nne, know-
^ iW MUM to be forged nud counlerteii.
taltMea, tbu i* nut the tint of sereral facts
1 9m ■■liisr thai have come to he cuniidered
qk tagard to tbe defemJHDt Mr. Halei : but
%lntllHl hath corib lo be examined in (hi*
ilrfendoiit, Mr.

fm ibargad upon tlx
liwmUy, a dwgytn

* &B Ifee fnetAng uul Mowing Cbks.

lancholy thing that when a scene of fiirgeiy of
■Ilia uature is going on, which as you bavd
been told is uf a very [leiDicious nature lo trade
and commerce, we lihoutd see nne chartrcd
Iherewilb that halh a right to a[i)iear in that
habil, and thinka til lo appear here in it. Uut
it Hill appear that there is jiifl ground to charj^a
not only the defendant Kales, but the defenibnt
Kinneraley. Gentlemen, as to Ibe fact, it will

I that i'

n thes:

tbe former fact ; that by Ibai corresiiondence
ti>at Mr. William lU\es thought tit (n let him-
self into with Mr. Edwards, by applying fi>r
frank covers lo send news into tbe coiintry, be
look occasion tu make use of such a paper ;
and that there bein|; an intimacy between him
and Mr. Kinnersley, Mr. Hales having by Ibia
means possessed himself ofa frank cover with
tbe name of " Samuel Edwards, flree " there-
on, Ihat u|Hin a piece of ibat paper cut otT from
tbe rest, a promissiirv note is wrilleu. I lake
it lhat the note will appear to be tbe hand-
writing of Mr. Kiiinersley, dated in a different
baud, Aug. 10, 1737. The words are these :

" 1 promise lo pay to Samuel Edwards, esq.
or his order, three monlha after date, ihe autn
of twelve hundred and sixty iioundi, for tha
value received. TiiuM.ts Kikhekslei'." .

On tbe back of Ibe paper these circumstaDCca
will appear : fiisl, the edj^e of ihcpHper on Ihat
lide uf it where the indoraenient ia wrote ap-
iiears cut offi and as in tbe furnier cose, ao
here there are tbe tails of two or three letter*
still remaining plainly to be seen. And it will
appear that here is an irregularity and uneven-
oe*E in the culling ; the edge in one placa
smoother btiiig lurued in, aud en book or deul
made in lite paper. Under Ibis, pretty near
Ihe top of the paper, is written, " Pr^y pay lo
the order of," then there Is a wide blank as in
Ibe former instance; then follow tbe words,
'■ For tbe value received, Samuel Edwards."
It appesTb that the words " for the " are writ-
ten in a sironger and blacker ink than the
former; the/of ilie former sort, probably Mr.
Edwards's. "The word " Ihe " is not wrilteu
in a contraction ua hetbre, but at length. Here,
iustead of changing leltera, erasing or turning,
are leliers wriiien over in a blacker Ink ; iha
other letters, aa the two re ajipeit in a palsr
ink ; BO ilial it will appear to a ftenioDslrutii-n
ibat this was a frank turned to this use. <Hh*r
ubeervatioD* will likewiie appear as Id tb«

227]

3 GEORGE II. Trial of Wtn. Hales,,

473. The Trial of William Hales,* for
taining the Sum of Four Hundred
Mr. AViUiam Harle, by fake 'J

A. D. 1729.

4f.UMTtle!f

ai thai il

. 3 ipprebeDJ lii
:gnind«d nnd cai
tsa. il will >f>li<

Jury swoTD orer agiio.

Clerk. OyEZ, Otm, if any one can in-
form, See. 3 "^ S

GentlenienoftheJory, William HalMriaadi
indicted by Die name of Witliara Hales, Sec. fbr
lalsly anil deceitfully obtaining (be autn of 450^:
of Mr. William Hsrle by a tiTM token, to wit, a

frnmissary note in the name of Mr. Robert
Tales, whereby the laid Rahen Hales ia sup-
posed to engage to pay within three months
alter date, the sum of 800/. to Samuel Edwards,
esq. with a counterfeU indonement on tbia note
in the great damage, &c. To this indictmeat
he hath pleaded Not Guilty.

Mr. Strange. This likewiae is an indictineot
agimst the defendant Mr. William HalM, and
is tor faliely and ileceitTully oblaiuing a
money of Air. William Hariebyafal*
And It sets forth, that the defendant fai
nu nossesiion a promissory note 0I
Hafes's for 800/."payable to three .,
dale to Samuel Edwards,^, with-.,
dorsemenl thereon in the name of tlie
trnitl Edwards, esq. did falaly and
olHoio of one Mr. William Harle, L...
A'Ml. on tlie said note. This is laid U
grent damage, &e.

}\t. UangerfoTd. Hay il please
>hi|i, the fact charged is the Tery t
the furincr cause already heard 01
dilTereat low, 3a Hen. 8. There
to long Bgoue an abomiuablc pi__
laming money by false tokens. The .
llament hath jtivhiUiicd that practice.i

Il penal. There is hot one -■■

trouble your lordship with.

Mr. Hark •wnrii.
Ur. Ilungirfvrd. Mr. Hurli
account lo my lord, and the
fir^l saw that note, and what

•1 dcr ol" Mr, Lilwards. Fvim

Hark
applied

■"l^" . ii^im^tiay Uiinff,

«"'*''" '^eflhe:

^"? • ^lii'baiMl.wi
•^;l'- ^*^ brief be _ .

■d-wriUng. II.
f be rigCt, iba

pAalwe shall lay before

— *^ of a|)ptyil^; to Hr. E

anner of making ihia m

^^bI, the DM be made of il. h

-^d«iMmting ofitoaa true to <

■ ^iitppeanoD ihefaceofit tub

II will appear plainly agains

aeemevl in the forgery, 9

n of it. A> lo the oiher 0

_ ~" nneraley, the circ

' ^ I have meotianed will make it

' ^^ and be as strong eridence ag

'--It the other.

gm. Wliilaktr. I will not lake

Hvnrdsliip's time, then: lieing ini

fittis; but aliall immediately cull

ma.

Jtmet Maddax and Am

art he inserted over again,]

yir.Jakn SpicerM\
8(^. WlUtaker. Look upon that 1
Ml acquainteil with Mr. Edwart
n™r__S;>ifer, Yes, Sir.
San. Whilakir. How long have
MnwiMed with it?
^^kv. Twenty-four years, Sir.
Smj. WMaker. How hug lia*e t
Mtwlumr
Sfktr. Between ten and I'lnun y
%IQ. Wkitaktr. How much ib h'i.
J^icr- Samuel Edward* and the

]

for a MisiUmeanw*

Sfri. Wkitaker. Very well. As to the other
kttnt, whit are they ?

flakier. Some of them seem to be written
tver ether letters, which I suppose were pert
ef Ihe word * free.* The r seems visiblt he«
Ivettlhtond r.

Mr. Strange. What was his method of wiiu

Efiut. With a donUe /, jast as it is here,

tk, Amge. Did ^oa ever koow him use
itasid Fraak f^^^wer. Never, Sir.
A9. Wnutaker. You say that }-o« haro been
■MHMd as derk between 10 and 11 years.
Vnyon ooneemcd befofe for him ?

^BiSBr. V OB, CnT*

fhq. Wkitrnker. lo what business f

As to Ma pivsae affairs in town, cash

I, and many of his vents.

WAUmkgr, During the time that you

aeqwuntcd with Iris prifate transactions,

understand tnat there were any

in asoney affiurs between him and

. No, nsfver any whatever. I never
as heard Ins name in the family.
1^. WMUmktr. Did you ever know that Mr.
iMds used to make a practice of indorsing^
■f Ukar pcffion's notes, or of giving' pronrn-
•wislsn? Sfker, No, Sir.

IHJ. WkiiakeTn 1 believe you will all be
omiMBd that M is his hand -writing.

MkMnfej. 1 admit, Sir, the whole body
tf tensle to be mine own band-writing.

■r. 8ir0ng§, Look opon it before you do
in We desire nothhig but what is fair.
Mamersley. Yes, Sir, I admit both the fi-
en the top, and the whole note to be

faj. Whiiaker. Gentlemen, yon will ob-
mveAat there were but 3 months mentioned in
AcBSle. The note is drawn August 16, and was
m brsoght till March 90 after, so that the
vWIe time was long expired before the note
mi left with Mr. Bird for the money which
What upon it.

Mr. Strange, I verily believe, my lord, the
and note to be both the same hand.

Mr. William Wright sworn.

^myWkiiaker, Sir, were you at any time

Ih Mr. Kinnersley and Mr. Edwarch, and
an there any diseourse passed between them
ikMt this note?

Wright. When Mr. Kinnersley was exa-
' before sir Richard Hopkins, he there
it to be his own hand- writing, butli the
1* and indorsement.

faj. Wkiimker, But give us an account
*Wdier he was going to make a confession,
m4 whst was aaid upon it ?

Wrigh. As soon as he said that tbc note
ta sH his hsnd-writing— '

L C. B. Ptngelly, And what did he say be-

J^fiifU. Wbtl he said, my tord, as to the
WM sftarwii^ As soon u he

A. D. 173a [SSf

I Kaid that the note was all his hand-writing, Mr.

i Edwards asked him, Why he drew the note

! payable to him, when there never had been

any dealings or negociations between them P

Serj. WhUaker. What said Mr. Kinnersley
to that ?

Wright, He said that there never had been
any doings between them, either before or
since the making of the note payable to inm ;
that he did not know Mr. Edwaros, nor, except
that time before sir Richard Hopkins, had not
seen him.

Serj. Whitaker. Pray, Sir, give ns an ie-
eount how he was prevented ffoing on.

Wright, He opened himself in this manner :
that he was indebted to Mr. Hales m that sum,
and more, and that Mr. Hales desired him to
give a note of his hand ; that he asked Mr.
Hales to whom it should be made payable? I
replied. It is very unusual to ask tliat. It is
sure natural for a man to make it payable to a
person that he owpth the money to. I said.
Sir, you seemed before to declare yourself an
unhappy person, an undone man. 1 asked him
the reason ; and upon that Mr. Mitford, who
was with him, said, You shall not go on to de»
dare any thing further, yon may do younelf
an injury.

Mr. Strange, Did he say at that time, that
he saw any thing on the back of that note ?

Wright, As soon as he had declared the note
to be his hand -writing to Mr. Edwards, and
Mr. Bird had shewed the note to Mr. Kinners-
ley, he was asked. Whether he knew of thai
indorsement of Mr. Edwanls's hand before he
saw the note? He said, he did know of the in-
dorsement thereof, but knew not how it came
there.

Mr. Strange, How did Mr. Edwanis ask the
questi<m ?

Wright, He asked Mr. Bird, Did Mr. Kin-
nersley own the indorsement before yon shew*
ed him the note?

Mr. Strange. Sir, you do not apprehend the
question asked you. What was the qnestioii
that Mr. Edwards asked Mr. Kinnersley ?

Wright. Whether be knew of the indorM-
ment before that Mr. Bird showed him the
note?

Mr. Strange. What did he say?

Wrifiht. lie answered that he did.

L. C. B.. Was that all that he said ?

Wright, He said that he had had sereral
dealinj>fs with Mr. Hales, which was the cause
of bis drawing that note in that manner.

L. C. B. But what did he say concerning
th(! indorsement?

Wright. Mr. Bird said, tbat before he shew-
eil Mr. Kinnersley the note, Mr. Kinnerslet
said that there was such a note of his hand,
with such au indorsement.

L. C. B. Hut what was the answer that Mr.
Kinnersley (jave Mr. Edwanis ?

Wright. Tiiat he knew of the indorsement,
but knew not how it came there.

Mr. Strange. Did he, Mr. Kinnersley, men-
tion the indorsement himself? Did be say,

935]

9 GEORGE II. Trial of Wm. HaUs and T. Kinnerdey, [SS(

whether he law the name before hit writ'uig
the Dute ?-— Wright. Not tt that time, Sir.

Mr. Siranse. Did he at any other in your
heariiisr? — li'righi. No, Sir.

!ilr Estrange, When Mr. Mitford ttopt him,
^as there uuy discourse afterwards whoaa
hand-writing the note naight be; was there
any dispute?

Wright, Sir, the company broke up then,
when Mr. Mitford had given him that caution.

Sir Richard Hopkins sworn.

Serj. Whitaker, l^r Richard

Mr. Xocy. 1 would beg first to ask sir Ri-
chard, whether this examination %vas reduced
into ivriting ?

Sir R. Ilo/ikint. I always take a memoran-
dum in my book of what is said upon an exa-
mination. Tliere was none other examination
in writing, but my memorandum of what 1
thought sufficient U> occasion the commitment
thut I made.

t^rj, Whitaker, When was it?

Sir R, Hopkins, it was some time about
September. I remeAaber that he was chargeil
before me about two notes. One was a note of
1,260/., the other was a note of 1,650/. ; which
of thc^e you desire me to sneak to, J know not.

Serj. Whitaker. That of 1,260/.

Sir R. Hopkins, There was such a note
drawn by Thomas Kiunersley, |>ayable within
three months afier date to Samuel Edwards,
esq. and indorsed by Samuel Edwards. 1
looked ui>on it ; and, turning over the indorse-
ment, it seemed to me to be an altered and
forti^cd thing. Upon this I examined Mr.
Bird, whom they offered as an evidence.
Mr. IVird lold me, that he bad lent money upon
that note of 1,260/. and that he had received
some money in part of payment of what he
bad lent: 'fhat Learing that Mr. Hales was
taken up, he made application to Mr. Kiu-
nersley tor what money remained due to him ;
that when he made such application to Mr.
Kiunersley for this money, Mr. Kmnersiey, be-
fore he saw the note, told him, that he had a note
of his for his 1,260/. payable in three months
after dute to Samuel Edwards, esq. or order,
and indorsed by item uel Edwards. This 1 laid
my finy;er upon before him, thinking it sufficient
to conunit him, and repeated the words to Mr.
liird, are these the words that you say ? if they
are, re|)eatthem ; which he did. I askefl 31r.
Kinnei-sley, whether he hfid any dealings with
Mr. Edwards? He said, that be had not. 1
askeii then, how be caiue to make a note for
1,260/. payable to him, a person with whom
he liad no dealings. He said, that he did it at
the icquebt of Mr. Hales, to whom he was in-
debted iu that sum of money« He said, that
as to the indorsement he knew not how it came
IhtTP. He seemed ready to make an ample
conieshiun ; but there was a person thera, who
was (1 think) one way or otiier related to tiie
law, who stopt him directly, and had oft inter-
rupted. I said to him^ air, tbb is not be-
•omiDgherc: I expect to caniae any penoo

without your interrupting. I will afterwards
ask any question that -«—

Seij. Whitaker, Sir, when Mr. KinDeiilcy
bad owned the note, was there afterwards a
denial?

Sir R. Hopkins. Aflerwardst Sir, there was
a denial. It might be as to tlie other note;
and not that which you are now eilung IM
about.

BIr. Richard Davis, the constable, sworn.

Serj. Whitaker. Richard Davis, I think tbei
you were the constable sent to apprehend Mr.
Kinnersley. Will you give us an eoooanl
how often yon went to apprehend bim,wbelhci
he was to be met withal, and what passed when
he was apprehended ?

Davis. My lord, on September 18, tbm
was a warrant issued out to take up the ktI
Mr. Kinnersley, and was given to ine to eie*
cute. Accordingly 1 went in the aftemeeai
and took a |iorter with me. We went to thi
Magpye tavern without Aldgate. I sent the

Sorter thence to Mr. Kinnersley *8 house is
lansel-etreet to tell him, that there was a gen-
tleman there to speak with him ; becaoee, hi
living in Mansel-street in Middlesex, 1 conU
not there execute my warrant. When lh«
porter came back, he told me, that the dmughlei
came to the door, and said, that the reverand
Mr. Kinnersley was not in town. After I Iml
paid for what I had called for, I wentfraa
thence to the derk of the parish, and esksd
him, whether the reyerenu Mr. Kinnersln
was in town? He answered. No; and sain,
that he went out of town on Tuesday, I thill
it was, and tliat he did not know when h«
would be in town. He asked me what I
wanted with him ? I told him that a conpk
wanted to be married, and wanted a licence
Won't (said ht) the curate do? No (said I)
the young gentlewoman will not be marriei
by any but the doctor, and at his church : S
the person having no apprehension, sent me t(
London-house in Aldersgale-strcct, to enquir
for Mr. May, who would tell me when thi
doctor would be iu town. He told me, that b*
would be in town next Thursday night. Ac
cordingly I went the next Friday morning
took a porter with me, went ilirectly to t£
Doctor's house. When I came there I ninj
hard at the gate. Out came the daughter,
asked to speak with the doctor ; she said tbi
he was not at home, and enquired what I wouli
have with him. I told her the same about m;
wanting a licence that I had tuld the clerk be*
fore. I will (said she) go and call my mammi
Accordingly madam Kinnersley came out: .
told lier that I wanted a licence, was in
formed that the doctor generally kept licence
by him, or at least could help me to one. SIm
desired me to walk into the parlour, said the
the doctor had been out of town, was very muci
fiitiff ued, which was the reason that he was dc
nied. Out came the doctor; Sir, (said he
where is the gentlewoman ? Sir, (said 1^ she s
hard bji at the Magpye tavern by AJdgati

f<yr a Misdememor.

il bt) is ibe, *Xii nho art ber frieoils
B Ifaat ber name waa Binl. When

B abe r I Mid ID Fleet -stifei.
<i be) remeuiber thai name. ¥011 do
. . BUllknowlwrrallierTery ndl. What
■II (aU or) ia she ? I told bim her age.
B«n bs I'riends aiten conaeut (laiil be),
'■'afcWIbM l.nouldiKil Jo it For lOO/.; tbe
yniqr ia 50/. \ I Inid liini lliat il bail been
taila MT know ledge. Ave (said be) ilroaj
k M Ac Vtm. J dHired bim to go to the
k<M^ where her brother waa wilh her, Rod
k*«M b* Mtisfied. My intent wna to decay
b ■!» tbe libcTtiea ol'ihe city. Hetaid, Nci,
k<M«Unotgn vrilb me; so I bad no oppor-
tari^tben. Itut baling seen him once, and
MinaatDS liiin, I afUrwarOa watched for him,
mi *a* bim come nut, and go through the
Ibmn. I watched bim till became to Ald-
|Nt; I kben paid my respectt to liim. I lliiak
{mA bt) that you are the peraun thai came to
■tabaat ■ marriage. Yea, Sir, (aaid I) but 1
'■" ■ ^ alfaii to apeak

He
, bad the

piisni aonl to him, be would readily have
«■&. I aakcii bim why he ilFniett bimseir?
■»Mll, Ibal be apprehended an arrcBl. I de-
M bfai U go with roe to the While Hnn
iMsia Biahai>9gale' street. Xlelbere owned

fc]. WkUakcr. Was it within or wilbout
^\m%t—Dam. It waswithin.
.%n. WKttukrr. Did you go wilh him to sir
fete4 Huphina?— Duvit. Yea, iSir.

|. Wkttaktr. My lord, there is another
""tu we aball prute, tor all is drciiro-
We ahall shew that Mr, Kinner»ley
_ '. HalM have been often together for
r It« raoDtlis in a priisle manner. As
B bath come in, the other hath

Cwilh kina into a private room, and they
Blajnl •ooie lime together ; and this was
itM Hi* iitiM that lime Iraiisadion* have
nbm these matters are laid together,
jai^MjailftcthalMr. Kinnenley bath not been
, mMm Mr.Edwar^aaalogivehirol.ifGO^;
lAu tberv waa a nlain limned design to
■ IbiaHiBtwy npon biseredit. Join (bis to-
'w with bis owning, that be knew that Mr.
^ ■ ' ■ ml waa on ilie back o( the note
V the note, anil that he knew of
rot. lliongh he said be knew not
Mlbere- CoDsiilering these things,
( bul that there was a con-
MbAtneutbein. We (hall call aereral

We submit it to my lord, whe-
— -f. Il ia foreign to this indicl-
aboulil have notliing nlTered
■at we may tw sii|ipoaeil to come pre-
■ ilWand. We caDDot be aupuuseil to
^ pNfwrH in iMcnd ihii, by shewing how
beaaM tbete, and upon what ncconnt.
_ I- C fi: Il ia an indictment againat both
!%• Bal« WM indeed »&>

scribed by the defendant Kinnersley: Bat
then itwasdebiertnl ontby Ihentber Jerendant
llalea. Now, they say, that they will shew
by several witnesses tbai they were Tery oon-
lersant logether about that time, and they are
■cquainteil with tbe private manner of Oieir
conreraing logether. You hear what is the
use they make of it. I see nut that we can re-
fuse their giving this account. What uae is Ia
be madeol it muat beletllu the jury.

V[t. Mather. Aretbeae things lobe proredby

Hr. Strange. Pray, where do you live?

hah. At Feel's colfee-houie, in Fleel-slreet.

Mr. Slrangr. Do yoti keep that bouse?

Bab. Yn, !^ir.

Mr. Strange. Hare you ever obaened ihat
Mr. Hales anil Mr. Kinnerstey erer frequented
that house, and in what manner ?

Bab. Last summer, tbe greatest partofthe
sutnmer,someiimes twice or thrice in a week, till
near the lime that ibe gentleman was taken up,
Mr. Hales would somcliinea come thither, and
anmetimes be there an hour or two. Some-
times be wnuiil ask whether a minister bad
been there to aak for himT We hardly knew
the name of either of them, but knew whnm ha
meant. Mr. Haleswould often bein ourroom,
and see sonielimes Mr, Kinneraiey coming, out
of the window. Mr. Hales would hardly take

«ofhirr

but a

she c

.te room, and

Hales would go ii
the other atterwards go t
timea as soon as one came in at one door, the
other went out at Ihc other, and be followed bim.

Serj. Wliilaker. How often was ibis ?

Bab. Twice or thrice in a week.

Mr. Strangt. Do you remember on what
occasion, and bow tbey lefl off coming to your

Bab, Mr. Kinnersley was not at the honse
for two or three weeks or a month before Mr.
Hales was taken up. Mr. Hales was there a
tew days before.

Mr. Strange. Do you remember that Mr,
Kinnersley passed by?

Bab. Once he did. He weol down Fleet,
street- Mr. Halearoscup, went out, ood went
alW him.

Mr. Strangt. How long tvas tbis before Mr.
Hales was apprebendeil ?

Bab. It was three weeks or a month, I he-
litre, before he was ajiprcbendeJ.

Mr. Slninge. I ask, Whether at any lint
they aatdowii in Ibe public room ?

Bab. Very seldom : Ihey generally went
into the pritale part.

Mr. Strangt. Was that distinct from lb«
rcstofibe buiiseF

Bab. Yes, Sir, i^uile separate.
Mr. Juhii BrBokttt

Mr. Slrtige- Where d* yon

S391

3 GEORGE 11. Trial of Wm. Hales and T. Kinnerdey, ££4

Brooks, ' I keep a coffee- hou<e in Downing-
(ttrerty in WesUniotter.

Nr. Strange, What name doth yoor coffee-
house go hyf — Brookt. My own name.

Mr. Strange, Do vou l^now tbat you have
ever observed that 5lr. Hales and Mr. Kin-
oenfley ever frequented your house, and in
what manner ?

Brooks. Mr. Kinnersley hath sometimes
come to the cofice- house ; sent for a porter ;
gave him a note to Mr. Hales, who hath come,
and they have gone to a private ^tart of the
room.

Mr. Strange. Was there aoy other with
them? — Brooks. No, Sir, never.

Mr. Strange. Was it often that they met
thus? ^

Brooks. About four or five times iu a month.

Mr. Strange. How long have thcv stayed ?

£r(k>/». Several hours. When I have asked
the servant whv a candle was not carried them,
ke hath said, that they refused it.

Mr. Strange. How long was it before Mr.
Hales was taken up ?

Brooks. About a month.

Mr. Strange. Was tliere any observation
yiade upon his being taken up ?

Brooki. I observed it the more, having oflen
«een them togctlier.

Thomas Janeway sworn.

Kiuncrsky. I admit, my lord, that we have
been together at several coffee- bouses.

L. C. B, Well, now the mau is sworn, we
will go on with him,

Mr. Strange. Do you know Mr. Kionersiey
and Air. UB\ei?-^Jnntuuy. Yes, Sir.

Mr. Strange. Do you keep a coffee-house?

Janeway. Yea, Sir.

Mr. Strange. Where?

Janeway. In Cornhill, Sir.

Mr, Strange. Do you remember tbat they
have frequented your house together, and in
what manner ?

Janeway. I believe they may have been
there t^^ther several times.

Mr. Strange. What company had they with
them ?

Janeway. 1 take no notice what company
is there. I observed them not

Mr. Strange, How ot^en have you observed
tiiem retire up stairs together ?

Janeway. I take no notice of sucli things.
They might for an hundred times, for aught 1
know.

Serj. Wkitaker. My lord, we shall rest the
evidence here. We submit it to your lordship
and the jury, when such a note is drawn by
•uoh a mau upon such a paper, by which he
promiseth to pay such a sum to a person with
whom he had uo dealings, to what end can it
ke. Can it be with any other intention than U»
charge an inuocent mau witli it ? J think it is
a plain case. It k certain that Mr. Hales car-
ried this note, and borrowed a sum of money
upon it.; and Mr. Kinnersley made preparation
tor it by making a note for so much monty

psjfable to Mr. Edwards. Doth a nan q
easily ifive 1,960/. to a stranger with whom U
bath had no dealings ? To what pnrpote eonk
it then be thus drawn? Wb^, to he indorsed
And this Mr. Kinnersley did, and he ownei
that the name was there, and be knew that Mi
Edwards was a rich man. Well, if Mr. £4
wards was a rich man, and^the other not won]
a groat, as he owncl himself to be an nndon
man, to what purpose then can it be? WeU, 1
think it clearly appears tbat this wan a eon<
trivance between them two. If you think mi
this plain, I think that it is imnoiisiUe to torn
vict any man on a stronger evidence.

Ser). Darnell. Mv lord, I amcounfel ierthi
prisoner at the bar, Mr. Hales. Aiu| I thiak j
doth appear that there was a transaction ha
twecn Mr. Hales and Mr. Kionersley ; av
that this money was due from Mr. KiaMibei
to him. And we aitprehend, nntwithftandini
what hath been oflered, that the confsMinp s
Mr. Kionersley is a proper justification of lb
Hales. It is not, my lord, Mr. Kinnerslev'
being a defendant that shall deprive Jlr. Uu|
of the benefit of this oonfesston. It ap|^earai|
that he was indebted to Mr. Hales, this nsl
was given in satisfaction : we apprehend Ibi
it was given upon this acconnt to R|r. Utlfl
In confirmation of what Mr. Halea nilh, m
can produce a person to shew tbat therf nt
an account between them, and Mr. KinnMhl
acknowledged such a balance, in salis&clii
of which this note was giveo. And we thpi
that it could not be drawn as a note of U§
Kinnersley 's payable to Mr. Hales, not «■!]
because the account would be as good agM
Mr. Kinner&Iej^ as such a note of bis hand, k
also because of 5fr. Hales*sown circumstance
Mr. Hales applied to a gentleman that reooqi
mended him to Mr. Bird to borrow money qpo
this note. And, gentlemen, it was thia nel
thus drawn that recommended him. M;
Hales had the misfortune to be oonceraed wit
sir Stephen Evance; he coukl not therefai
appear himself; and, therefore, by the assial
ance of this note, borrowed tlie money. Whi
difficulties came upon it, he went and paid pai
of the money, and I believe would have talu
care to have paid the whole : it doth notappei
that this hath affected Mr. Edwards. H
name indeed hath been exposed as a roan won!
not l)e williuff thatit should ; monev bath bei
raised upon the credit of his name ; out he hnl
not becu affected thereby. This therefore lid
on the unhappy circumstances of Mr. Hak
We will call one witness, and ihen this coufti
sinn of Mr. Kinnersley we ho|>e will avail.

Mr. Lacy. My lurd, I apprehend that there
a circumstance ihat lessens the weight of, if
not wholly sets aside whst they go upon. Whi
they have gone on was, that Mr. Edwards
franks were used lo this ill purpose. Aladdae
a servant of Mr. Edwards, is produced, wl
tells us of a parcel of franks that were delif en
iu July iMt. Mr. Bird gave an account tk
this note was liroughk to him in March : i
that ii was brought him before thoae fnnl

I Mhdemranor.

Aiul thnugh il may be ap<
there were oiher rmiikti, we
Oittk tint (bera ouyhl lo be a ptout' of some

ji.U il.ii iffrti dt'lKcred before.

TIterc hnfe been, Mr. Lacy,
■j'l^weti) for^teral years. Thoie
< 4:Iil ill July laM, arolliose ihkl
iiniikn), but were only covei-s iell

Mf- R^btrt Burkil ivimn.

<://. No ! What dolh (lie mao

' What, none in Newgate, nor
Uo you know of oooc ?
■ .,Sir.
' -■,■. Do j'ou know of any money
ftji 'u nl auy time itue froiD Mr. Bale* to
Nr. fciMMnic)' r
Btrkit. No, Sir, none at all.
LC. B. Ila>e voii anyolber trilnesi?
Sqj. Darnell. My lorJe, there are Iwo wit-
• ■ --.slaleJ,

^ Ejrt. My lord, aud ^ntlemen of tlie
, A I am connacllbr Iklr. Kinnersley. I sp-
|MmJ iliM lie is ionncent. t readily agree

liy ad of parlwtli
MMHt, uid (heir ceourity necessary lo com-
M«t; toil that Uie forgery of audi notes
III ■liinrmeiiu tliereupon i« very peroicioua
ktt* f¥Uic : I ihertfure apprebend that (here

«Vt W alrong e*iileiu;e for tlie contlcling
ih a crime. 1 bu[nb|y Bubiiiil it, that be-
In * Bss be convicted or ao iutamous au af-'
fel Ifcer* oo^t to be atran^ eiidence ; and
it iMber )M^r«iuie be it a clergyman of the
flHcli of Eaj^aiiil, and his cnpacrty nl' «er-
(indepriLda M)ion liia credit: And il doth ap-
fwlkat be baihbeliarcd himself wiib all pos-
db eaalMD. You see that ibe coutrivance
tm IW iiilirvr aem la apprehend bira made
111, iiu a preience of a marriage. You
Mn, and I did glad lu tee il, and
■0 otlieis Used tbe i>ame caution,
hiaanijuiry wliul t^fe the young wo-
lof, MiilentaadinE Ihni Hhe waa not of
bcr parenti not being tlii^re, nolwiili-
dial be irit told lliiit lier liiuihcr
riUi bor, jet he ab9i>luti.-ly refused,
111 nut be coocerncil fur an
foaajm niibuui the parent'a conBenI:
Mich a p"ii>t ill hiw favour, lliat 1 Ibiiik
•lion^rr cirr^iinaiance fiir him, than
circuniiUiiceB arc ugaintrt blm. A*
affencK iliai ii charged upon bin. ilia, I
:, (bat he »li«uid gifa mit a note made
IMjalili- (0 Mr. Kdwards, and in
DtiU! in Mr. Edwards'a name, ii
ij^ Mr. Edwardi with the pay
iiinpy. Tlii'v lav a great itreai
1 ••y, that Sir. fciuiiersley wui
Liiiti«l iriib Hr. liiwuit. Ow

A.D. 1729.

of die wimenes aaiili, that Mr. KinnetUt^
hitntelf oivned that he had neicr seen Mr.
Edwarda before in hi* life. How therelbr^ (say
tbey) is it likely, that there should be any
tiur reasDa for a man tn make such a note pay -
alile lo one that he had no deahng nor acquaint*
ance with, nm- had so much as ever seen before
in his lite T I eubinit it to you, whether in ibe
course of business it is a material thing whom a
note is made pajablelo. If a man owe a sum
of money, and give a note for it, il is natural to
enquire to whuiu it should be made payable,
It was the more naiural iu this case, ai Mr.
Uales, having the miaforlune to have a com-
missiun of bankniplcy standing out against
him, could not negociste note* in his own name,
but must act in some friend or neighbour'!
name. And il is no great wonder that Mr.
Kinnersley, whose characterdirccted bis studies
another way, and who waa not Bcqiiainled
much with these aftkirs, should he imposed
ti[H)n to give such a note; and the less so, fnr
this plain rEOSOD : Sir Stephen Evance and ih.
Hales formerly Ufcd iu Mr. Kinnersley'a
parish ; received him with a great (leal of oiti-
\\ty : It can be no wonder therefore that h*
alierwards continued an acquaintance with him.
Notwithstanding his roisforlunea, it ia plain that
Mr. Hales was Hiillacquaioleil with several very
worthy gentlemen : Mr. Gibson and Mr. Ed-
wards butb furnished him with franks; sir
Uiby Lake recommended hira to Mr. Bird, in
barrow of him s considerable sum of money.
If such gentlemen as Ihese thus corresponiled
with him after his mitlbrlunes, no wuntler thai
Mr. Kiuuersley, whs had been the minister of
the parish where Mr. Hales had lived, should
beep lip ao acquaintance with him ; and so no
wonder that he ahoulJ be so imposed on. In
fhci, Ke shall shew you that he was indebleil
for such aaum to Mr. Hales. It is impossible
(Ogive a particular account of the whole affair ;
Mr. Hales being also a defendant, and there-
fore no evidence : But that he was indebted iii
some such sums is plain. Gentlemen, it is
very ioaocent if a man give a note where ibero
is no consideration. ' A is no injury to tbo
public. The person that gives the note may
mjure himself, but not the public. There ia ai>
act of parliacnent against tlie giving of auch
notes. Well, if the giving of tbe note be nut
culpable, consider bow the fact uf the indorse-
ment comes about. And if you consider how
that comes about, do doubt but that he must ha
i:leared uf the fact. How must this be done to
affect Mr. Kinnersley 7 It mu-st be on the back
of the pole when ho wrote tbe note, and h«
muM know it to be there. Now, with great
submissiou, have they given any proof, or co-
tour of proof, that it was then there, or, thai
if it was, be knew it lu be tlienf Hiey haw
given you (he prouf uf Mr. Ciid and the con-
stable, who was present when lie was examin-
ed. According to the Brst of these, it is pUin
that he knew not. He said that he knew (bat
the name was there, but know not how it cania
Tbbc, I thiuk, instaad ol a coafotiaa.

fiS]

3 GEORGE II. Trial of Wm, Hdn and T. Kinnenley^

is an BTeiAo^ of it, by nyini^y HMt be knew
nothinfir ai «|| how it came there : But consi-
der tlie nature of ^e thinip, how it is eupposed
to Ik done from a frsnii of Mr. Edwanls's.
Mr. Edwards liad never franked a letter for
bim, but many tor 3lr. Hales. Is it not most
natural lo suppose then that Hales was con-
cernod ? Hnw doih it follow, that this being
done from a frank, the nam<! must lie tbera be-
fore Aie note was wrote P A man that is capa-
ble of drawing such a note for ooeh an end,
might be not gire it to be Ihmked ? Is it not
easy to conceive, that if I give onch a note on
a quarter of a sheet of pa|>er doubled up to a
person to be franked, that he shall do this so
as to make the name stand for an indorsement ?
1 woaM mslce this further observation, it hath
been eounted doubtful, whether the making
nse of a man's name to a diflferent purpose
from what he dcsigiied itfor, shall be counted
a forgery. I think that the doubt arisetfa npon
a distinction of my lord Cowper, on the statote
of 8 lilix. between forgmg aud making a false
deed, i do not |ire(end to say but that the
opinion of the King's -bench was right. It
was in the aflair of Ward and Bridge.

X. C B, No, Bridge and Dutton : there
was an alteration. The question was, whether
H could be accounted a forgin-y within the act
of fiarliament ? The wunls of the description
in the act of parliament are, ^* if any one forge
or erase, IkcV whether he could be charg^
with forging of that note ? I was one of the
counsel. It appeared their opinion, that he
forged it as much as if he bud wrote the
whole note.

Seij. Eyre» M}* lord, \ a<]free it to be as
your hardship puts it. I nnly mention it bs a
iktubt not settled hy the priti(e<l bookii. My
lord, a man may alter a deed, e. g. a person
o Weill me money on bond ; if 1 alter tlie boud
to mine own damsge, that is no forgery ; but
when he doth it to the injury of the person to
wliom ttio money Is owing, then it is forgery :
the furgery therciore lieth in the design of
defrauding another. Now, whose good is it
that this note was drnwu for ? It appears that
my client had no benefit st all by it. The
money was all received by Mr. Hale^, and the
whole transaction about paying the money was
by Mr. Hales : he was therefore to receive the
%ene(it, most likely therefore tlitit the forgery
was his. And as to this promissory note, what
SVBS the effect of it ? No one will pretend to
say, but that if Mr. Edwanls was to bring an
action lie might n cover his money of Mr.
Kiunersley: he hath, therefore, osily wrote
A note, which, with nut controversy, hath sub-
jected him to the payment of such a sum. of
money. Mr. Hsles hath receivcil the money,
and gained by this ntite. IVe submit it there-
fore to your lordship.

Hr.* Mather, My lord, with rHstinn to the
transactions between Mr. Kinnemley and Mr.
Hales, we shall call evldi.'nce to sfiew the
reasons of those private meetings that were
bstwccB them.

Mr. Ftter Marsh sworn.

Mr. Mather. 8ir, do you know the •
ants, Mr. Hales and Mr. Kinnerslev ?

Mardh. I have. Sir, known Mr. Hale
years.

Mr. Mather. But have you known M
nerKley? — M^trth, Not so many years.

L. C. B. What is your business or e
ment ?

Marsh, I am an attorney, my lord.

Mr. Mather, Do you know of any t
tions between Mr. Hales and Mr Kiun

Marsh, About ten or eleven yeai
Mr. Hales brought me a bond of 50/.
by Mr. Rinnersley to me. Mr. Kir
owed him the money, and had given
bond imynble to me. He desired me t

Seri. Whiiaker, This is not evidence
signihetb it what the defendant told hin

Mr. Mather, What was done upo
Wlmt came of the bond ?

Marsh. I delivered it to Mr. Hale

Mr. Mather, Did Mr. Hales owe

>we y
at all.

money ? — Marsh, No, Sir, none
Mr. Cropley sworn.

Mr. Lacy, Mr. Cmplcy, What
know of any money -matters betwe
Hales and Mr. Kinnerifley ^

Craplcv, I received ahout 607. at Jai
eolfoe- house, a ilebt which was clue
from Mr. Kinnersley : they were tl
gether ; Mr. Kinnersley was the debt
Hales had given me a note for it. 1V1
nersley had prevailed on me to lend
hundred and odd ponnds upon but a sli
quaintance : he hronght another gentl<
be security with him for the paving it
1 forbore liiin for six months. ( then c
of him after it : w ben he had led nie
from coffee- house to coffee-house W
months, I was forced nt last to sue for
desired me to sue the other pnrty, and
him: I recovered half from the one,
came upon him for the other. When
to siTvc him wiili a notice of a writ
quiry, he met me with Mr. ILiles i
tavern in Holborn, about June or July
atnelvemonth. Then Mr. Hales suit
I am to receive ahout 6 or 700/. with
three months time; and then I shall ^
to pay that money: upon that I st
procedure upon the Writ of Enquiry;
Mr. Hales requcsTcd me, I took Air.
and Mr. Kinnersley'* note for the pav
it within three mouths: when tli;it I'i
expired, or within about fonr months,
What was his pnrt to pay I received :
way's coffee-house: they were to
which paid me I cannot say. The moi
in half and quarter broad |>icces : I rel
take it in tin-se pieces, being to trans;
the Allrv'. Upm tliat he touk me to a I
abom Yemple-bar, and there changed
L C. B, When was this ?
Cropley, It was in February. M

St9j

Jbt a lii9iemeatiar.

A. D. 1739*

[240

MKltsr sifB me m Utile netoat the sMue tkne
im the WMges that I had austained iu teek-
iw it; ahout 5XH, or tbereabout«.

Ilr. Sinngf, liath there been any appUca-
liw Bade, Sir, to you to appear aa a witoese ?

Cr^y. Yea, Sir, BIra. Kinnersley tent te
4mm BM ; mmA Mr. Kienertley also aeot oie
atolls, asd bcaidee that seat iue.a Subpceaa.

Mn llrtn^cL Caa you produce that lette ?
GNpigr. 1 have it not here, 8ir.
ik.Si^mmgt. Yott caoDui aay which paid

iaiiav,8ir?
fwy/ry. No, Sir, but they were both to-

l^ffgfty. Sir, one word I beg. Did not
fcBalai giro you a note for it?

UqdiSf. Yei, Sir, you and Mr. Bake
jwdinil.

Mi: FHer Beait waa called, but did not

Mr. Jokm WeU$ aworn.

Mr. lary. What do you know. Sir, of any
•■ly dnefrom Mr. Kinnerrfey to Mr. Hales?

Wdb, No, Sir, I know net of any.

Mr. Lacy. Or of any money lent, particu*
hrij aa bondved pound ? Was Mr. Kinnersley
Mtosi lo yon ?

Mb, Yes, Sir, an hundred poond ■

*ft. Itfcy. Who lent hin the money to

wmk, Mr. Hales, as Mr. Kionersley told me.
Mr. £snr. Who paid you the money ?
Mb. Mr. Kinnersley.
Mr. Ian. Was Mr. Haica present ?
lUk I do net knoW| Sur. It waa

Mr. John Sunpsoa, hanker, sworn.

Mr. Lacjf, Sir what do you know of money
Mr. Kinnersley to Mr. Hales ?

Smf§9n. 1 know ootMr. Hales, Sir. 1 never
vabrnk out of Court.
Mr. Lacy. Was Mr. Kinnersley indebted

oaipsM. Some months ago he borrowed of
MM, on some lottery tickets.

Mr. Jjify, Who paid it you off?

fiw/Moa. I was not at the shop when the
■■cy waa paid.

Mr. Lacff, But do you not know how it was
tmktTjgfd, whether by money or notes, and
Ayvhsm?

Simpmn, No, Sir, I cannot say. It doth
■t apfpsr by oor books.

Mr. Xflcy. Tk^ you know or not that Mr.
Irim paid it, or gave a note for it?

iimpMtn. I do net know, Sir.

lb. Lacy. Dolb any note by your books
given for it, or by whom paid ?

No, Sir ; if it had bef*n paid by any
than Mr. Kinnersley 's, 1 believe
te Jl fsooU bare appeared by our books.

Mr. Fowter, banker, sworn.

lisaai/sy. Stf, I lieg you to say who-
i» you HBMmber that 1 gave you a note
ifiMnAflCMr.Halw'i?

FomUr, You never mentioned his name. I
lent you money upon lottery tickets; but
know nothing of that you mention.

KiiMcriley, Did not Mr. Hales come to
yottf shop, take up the note, and pay it ?

Ftaoler. No, Sir, not that I know Oi. I never
saw him tiiere.

Mr. John Hall sworn.

Mr. Lacy, Did you ever, Sir, give a note
upcjQ Mr. Halea's acoount and for bis money ?

JialL Not that 1 know of.

Mr. Lacy. Did you at his desire pay aay
money ? — HalL No, Su*.

Mr. Xocy. Do you know any peraon that
did?— lir«/lNo,Sir.

^j. Wkitaker. Do you knew Mr. WiUiam
Hales ? Will you give us an account of his

Keying you a bill iu broad pieces, and whether
e asked you to write hie name Wells. He
can tell very well I know what this meaner
Did you give any note, or set your naaM?

liaU, I set my name.

Serj. Wkitaker. Do you knew your name
again :' — Hall. Yes, Sir.

Sepj. U^A4VaW. Is that your name?

HaU. Yes, Sir, it h,

Serj. WhUaktr. When did they get it of
you ? — Hall. On August 17 last.

Serj. Darnell, 1 see not hew my brother
makes this efridence against Mr. HueSk He
is not brought for him but fur Mr. Kmnersloy ;
and they would cross-examine him as to Mr,
Hales.

Serj. WhUaker. I agree with yon that we
could not have called him : but my brother
Eyre called him to shew that there was a pro-
missory note, he denies it. Well, 1 submit it.

Serj, Eyre. My lord, we have gone through
the evidence opened : but I would mention this
as to the examination before sir Uiohard Ho|)«
kins. It is suggested that Mr. Kinnertdey
would have confessed, but that he was in-
terrupted by Mr. Alitford. It is plain that he
bad spoke to all that was material both as to
the note ami the indorsement : J think that it
is therefore wrong for them to say that he
would have confessed more, but that he was
interrupted. But we will call a gentleman to
shew in what a candid miuiner he behaved,
and that he was not interrupted in the i^anner
that hatli been suggested.

Rev. Mr. John Hayes sworn.

Neij. Eyre. Were you present, Sir, at sir
Ridiard Hopkius's, when Mr. Kiunentley was
exaniineil ? — Hayes. Yes, Sir.

Serj. Eyre. What did you observe about his
being stopped, or did he fully speak hb mind?

Hayes. I remember. Sir, that Mr. Mitford
desired him to be cautious, and not too free
iu making bis reply.

Serj. Eyre, J only ask you, whether lie
had nut then spoke both as to the note and the
indorsement ?

Hayes, He said that the note was bis. He
said that aa to the indonement, he had heard

347]

S GEORGE IL Trial of Wnu Hales and T. Kimerdey^

that it wu indorsed by Mr. Edwards, but
([new not how it oaroe.

Serj. Eyre. Do you aprirehend that his beinnf
eautioned was to be careful in his answer, or
that referred to the answers that he had al-
ready madeP

Hayet. I apprehended that the caution was
to be careful in his answers.

Mr. Grants sworn.

Seij. Eyre. Were yon present at the «xa«
nination of Mr. Kionersley before sir Richard
Hopkins?

Grants, Yes, Sir, Mr. Kinnersley sent for
nie when he was first taken up. I suppose it
was because 1 married a relation of his ; lor 1
knew nothings of any transactions between him
and Mr. Hales.

Seij. Eyre. I ask you, whether he fully
apoke his mind about the note and the indorse-
ment, or whether he was interrupted therein ?

Grants, Sir Richard asked him, whether he
knew the note and the indorsement? There
then passed a sort of a squabble between him
and Mr. Mitford.

Serj. Eyre. Did you observe that any gen-
tleman interrupted Mr. Kinnersley, or cau-
tioned him as to his answers ?

Grants. There was an interruption: but
what it waa I could not particularly hear.

X. C. B, Hare you done?

Serj. Eyre. Yes, my lord.

8er|. Whitaker. My lord, lobserre^that the
defence that they have made is for one to
throw it upon another. Mr. Kinnersley thinks
that Mr. Hales is as deep as he can be, and
therefore may bear the load: But then my
lord, Mr. Hales wants to retort it upon Mr.
KiDDers!ey ; but the drill of both is, that Mr.
Kinoerslev maj^ get out as he can. You will
observe the defence : There is a pretence of
mutual dealings, and that this note was given
in discharge of the balance of the account. I
submit whether there hath been any evidence
of any dealings to an^ such sum : If not, to
what purpose was it given ? If it was to raise
money, was it for a fraudulent purpose, or
not? If it was, they are both equally guilty.
But the pretence now is this, Mr. Hales was a
bankrupt: and it was therefore proper for
them to have a third person, in whose name to
transact. Now how could that be proper, if
it was a person over whom they had no power?
Would any one be willing to take notes in the
name of a stranger? Is a stranger to be
trusted with such a sum? No. If not, how
then? Here is one man to write such a note
for another in Mr. Edwards's name, to what
purpose? Why, in order to charge Mr. £d-
wanis with the money : Else, what si^nifieth
the indorsement? The question then is, was
Mr. Edwards's hand then*.? And did Mr. Kin-
nersley know it ? They that woukl have it that
Mr. Kinnersley waa very innocent, say, that
he knew nothing at all that Mr. Edwarda'a
liand waa there. Well, when he cornea to be
Silied upon iod iinportiiiied Ibr the BMoey by

Mr. Bird, what doth he say ? Wbr, M
wards is a rich man : I am an undone
You must therefore resort unto him.
was said not only upon the sight of the
but before it was shewed to him. U'
told Mr. Bird that he knew that he hai
a' note of his so indorsed. Gentlemen,
of this nature are only to be detected h
cumstanoes. They will not call person
witnesses to these transactions. If thia
fair dealing, it waa proper to have called
one hooest man to give an account that 1
present thereat, and privy to this transi
But instead of tliat* which is the wickc
cannot tell ; but it is plain that here is
trivance to charge an innocent person
auoh little things as evidences of transi
of a note of fifty or thirty pounds, or th
are not to go against it. Circumstanci
not make a plainer proof than here is <
gery. A note drawn on such a little ps
so slovenly a manner, detects itself. He
plain forgery. The question is, who is
of it ; and whether there is not sufficieol
that the defendants are the persons guilty
Mn Strange. My lord. I beg it may b
sidered, whether it is not criminal to giv*
a, note. At aeveral times he declared bel
saw the note, that the name of Mr. £i
was on the back of it. If the jury are •
mind, as to one fact, it is a demonstratio
the name was upon it when the note waa
If the iury will look upon the note, it «i
pear tnat something was written upon th
and nothing more probable than < free.'
any imagine, that Mr. Edwards, whose
is there, would ever write a frank upon s
If therefore the jury is of my opinion
observation, that there was at first ' Fr
muel Edwards,' it is impossible to imagi
that it was wrote there before the no
drawn. My lord, that the jury will tt
their view. My lord, there have been (
things said as to whose benefit this sh(
for, that it is plain that Mr. Kinnersl
ceived no benefit by it, that therefore it
not probably be his forgery. My lor
plain by the account that we have given
their correspondence, that there waa
thing carrying on between them, whict
be of a very private nature. Doth it e
pear for whose benefit it was ? I am fsi
an undone man ; you cannot expect it
but must apply to Mr. Edwards who in
it: And therefore, though he made I
liable, that aignified not, as he was at tb
time liable to many more actions. Its
that they were obliged to give the note
name of another person who was respc
having no credit of their own. As to tl
jection, for whose benefit, we appreheoc
no consequence ; they might probably s
between them. There was another thi
deavoured to be proved, viz. such a de
from Mr. Sjnnersley to Mr. Hales,
they thought it naceasary to attempt s
of tbatkiAdyif they bavefaiied in that p

J6r a Mitiiemeanor.

t npinion wbb that Uiey
1 [»nol' of Uiat kini), wliicii
Wh«l h»»e Ihej ^aiueJ ?
tegiveuof l,S60l (sver^
rrom * clergymin in his
n), lliey hare prelcDaed lo nrcie
one bond of 50/. which halb not
I. but unl; Mr. Hales came to Mr.
i tnlil him ihi*, which 1 Rpnrebend
iBkntrriileccF ; Hart ihey brought lliebooJ,
il^iW liarF aj>|«urerl whrthw true ornnl:
TWiiiMi )irool (kit Mr. Kinnenlfy waa in-
tttd to Mr. lUlw. What Mr. Ciopley
■■k •■Hi'>i>*lh lo Qoninrc than about 69 or
*■ I BiuM lubmit il, whether they hare given
I w— ■— tUa uccouiil of lliii affair. My lord,
IM ta iMppincm Ihat there arv such g-encral
■niMnnrr* *« leiiiJ lo itelecllhein.

•kaU ailiii* with yuurconnsel vrhelheritbe
|n|Bi' : I wouM only arquaiai voii that it is
MNfwUr. If yuu would he heard, or call
m; vitaeo, if^ou hare any thing material fur
ym Mnce. it shall be heard: But if you
F'fac* BUT lliing af\e, ibe ciiuasrl tiir the
■■( (boat taie liberty to answer ; or if you
t^; tDy wiloeu, they must have liberty to
OTM-mminc, ar to bring any other CTitlvnce
mtnvie.
tkmmin
*«■*. I

tt)|tMlnciBn I belicTe will aci]uieace. Mr.
Msim niA 50'. i he took it in that ^cntliv
■wS naoic that was colled for b witness :
In, Hr. Took hail oae hundred and liny
jMdaMe : Another Krn'leman (Mr. Rurtnii)
m Mte of 1W(. wliirh Mr. Hales gare him

inliiDBted that

LC.B. Mr. KiDnmley.yo
jm^mM brinp nothing new.

Stntrtlfy. My loni, at ■ public coffee-
kMt he 4Mir«) me to lay down 'isl. anil the
■Am ire DOW id court which were acluatly
■MRd for M tnuch money. And as to this
t, I all God lo witneiB, thai this note 1
BB|i<Ni no other uccuuni hut on settling
'» exchange for other oolea which
thai nun. He directed me how
Ic the paper out of hi* book, and
Mt, whence I now apprehend that
■li^ name was then on the hack. I
Btny in his altering any lelleni: I
U not* for want of niouey, fur a
i> Mill du«, and call n[iou him to
_ liatnw.

JItt. Gen. My lord, whatefer Hr. Kin-
Iv^ baib avrrrnl ia without wilneiR.

Z. C. B. When persons are proacciitMl ca-
AAy, (hr bw a1lnwr-th hint not cnuosel us in
In: iWrHWe, wliai a person Bll^ts hiinwir
Mitfe tafcati iiotirr "t- Upon a charge of
Badiiuiaunr y>-ii nisk-ynar dvfnKirhy coun-
WL Md tber Uau- ih" raw. |i doth nut avail
"*yif wint a prrt<io lailh hitnself. and cluil
7 wy ariil* otn, eicr|>i «upp«rlMl by priKif.

c viHJat* u wdgtit u pfOTed,

A. D. 172d. [950

Kianerileif. Hylord, arc policies no pmnfT
Here ia n cenilicale from ihe proper nfticer.
Sir, I insist upno it that yon do me justice in
ihis matter. I will be coulent tu sufl'crilcaili
if this be not »a,

L. C. B. You are not lo be ooir regarded.

1, C. B. Gentlemen of the Jury, this i(
an indictment againut Thomas Kinnerslry,
clerk, and William Uales, late uf London, gold-
smith, Ibr forging and |iub1iihing an Indorse-
metit on aproinissury iioie, for the paymcnl of
t,250l. to Samuel lidwanls, esq. An'd the in-
diclnient sets tbrth. That the defenilanls. har.
in their custody a promissory tiote subMrribed
l>y Thomas Kinneraley, and bearing date. 4u>
etist tC. 17S7, whereby Kiunersley promised
to pny 1,900/. to Samuel Edwards, e»q. « hliin
three moulhi ; that the defenilantt, having ibis
noie in their coslodv wilh an inleiitinn to de-'
crive and defrauil llie same Samuel Edwanls,
etq, and being persons of evil fame and renu<
latioii, did falsely Knd fr«iidulenlly liirge and
eonnlerleil on this note for 1,36(»/. payahltt
i«iihiu three months after dale lo Samuel Ed-
wards, esq. or bis order, an iodoraeiuent (o
this eAect ;

llierpbv intending to charge Mr. Edwards ■■
the in jorser of Ihal note wiih the payment of
the 1,2601. coDtDined in tbf lioily of the aaid
□ole ; thai nfier Ihry had Ihrgnl and counter-
lieiled ihis iiidorsemeot ufion Ibis note, and
knowing il to be a couoterleil, ibey did publish
tbe «sid note so iudursed. Genllenten, the
counsel on Ibe bebalf of the prosecntion have
Eic(|iiainled you Ihal ihey look npaa Ibis a* k
contrivance uf both ilelendaots lo eairy on this
forgery upon what they suppose at first raerelj
afrank; Ihat the name of Mr. Edwards iipiin
the cover of a leiirr wiih the word ■ ffree ;' that
the word ' firee' halb been at tbe time of tba
indorsement altered and made * for the,' and
the words • value received' added to Ihat, and
made the indorsemenl to thi» note. For the
corrnbaraljng of ihia ilicv have called several
witnesses. Fi.st, Tbomas Mndilox'was called,
a servam to Mr. Edwards. He tells you that
Mr. Edward* lives in Duke-street, Weit-
minsler, and that the defendant Hales lived
near over- against him; that Ibe defendant
Hales frequently sent covers over, upon which
be bail several trankx dirrrlrd lo several per-
son!; Ihutlhlsbalb hren Ibe custom (iit se-
veral years ; that Mr. Edward* used to send
iheiii over indnrscil with his name ' Samuel Ed-
wards, ffree.' He tnith, that bis usual waj
svni tu iodurse the whole BuperBCrijiliun ; but
that iasi snmni'T, some lime about July, there
were six covers sent over by tbe dcfeoitaiit Ih
Mr, Edwards's house by the defendant Uales,
desiring ibat ibry might be franked with only
'Samuel Edwards uree,' without writing tba
whole supTBcripiioii ; that Mr. Edwards de-
dined Ihal, saying Ibftl he Qcvn &\&\\-. >t«
liief etlira rel'tued liim, inl t^<MC ca^&n ««<:«

151}

ft GE0&6& n. Trial 0/ JF^ HoZif Mnd T. Kinntrdey, [«MI

not iodorsed, but wcte prodaced here. He
hath been asked, Whether he knew of any
correspoDdcnce besides this of franking letters
betivecD Mr. Edwards and Mr. Hales; and
nhethrr he knciv ofany between Mr. Edwards
and Mr. Kinncrsley? He answered, that he
doth not know of any whatsoever. Another
servant, one Anne Clarko, comes and produoeth
a paper of names that was brought over from
the defendant Hales to Mr. Samuel Edwards's
house, in order lor hiui to frank letters to those
persons, and write the whole superscription as
at other times. She produced the paper io
court, which she said that she received from
3Ir. Hales's servant. And Mr. Booth being
examined thereto declares it to be the prop^
hand of tlie defendant Hales, with whose writ*
ing he hath been well acquainted, especially
since his bankruptcy, he being a clerk in that
commission. In this paper is wrote,

Two to John Pratt, esq. Bristol.

Two to Mr. Levett, Huntington.

Two to Stephen Mitford, esq. Exeter.
They make use of this evidence to shew that
there was a sort of an attempt to get covers
with these names franked, hoping or supposing
that there mi$;ht be a space left sufficient to
write a note of this nature. Mr. Booth, who
was called to prove the hand -writing of Mr.
Hales, was cross-examined by the counsel for
the defendant, whether he knew of any traffic
of Air. Hales since his bankruptcy. lie saith,
that he doth not know of any, but that he was
well acquainted with his baud-writing, being
employed in the affair of the commission of
bankruptcy. BIr. Thomas Bird was next called
and examined as to the circumstances of the
publication of this note. He tells you that this
note, dated August 16, 1727, for the forged in-
dorsement whereof both the defendants are pro-
secuted, was brought to him, in order to take
up money upon this note, and further security,
which Mr. Hales gave in March last ; that it
was brought in the manner that it now is, and
no alteration made either in the body of the
note or in the indorsement, but it stands and
remains in the same manner as when he first
received it ; that when Mr. Hales came to liim,
he pruposeil to borrow of him 750/. upon the
credit of this note for his security, and likewise
upon his own note for the payment of this mo-
ney ; that he had been requested by a friend of
his in the morning before to accommodate Mr.
Hales with this money upon the credit of a
note which the person hud in his hand, and
which was the same note ; and that on tlie
aAernoon of the same clay [March 20^, while
he was at the Hudson's- Bay house, in Fen-
church -street, Mr. Hales came to him with the ,
note, anil he then lent him the money for 14
days ; thit he then desired Mr. Hales to write
ioiiie paper to testify the receipt of the money,
and be a further security to him ; and that the
laid Mr. Hales thereupon wrote a promissory
note dated the same day, wherein he promised
the re pa^ ment of this 7501. in 14 days, which
■olo was idwcrilwd bjr the dffendant BaJca

himself; that the sum of moaey waa mada ap
in several bank notes ; that he delivered thoa
to the said defendant Hales, and took this Mia
and Mr. Hales's own note, as a security forjht
said money ; that April 3 following.
Hales brought 400/. which he indorsed
his own note ; and thai the rest of the no
remains due. He tells you, that when he
heard that the defendant Hales waa •Pffl^
bended in September last, he sent to ona Took*
kins, an attorney, delivered this note to hiai la
go to Mr. Kionersley, to get this money iv
him. The account that he received waa, thai
Mr. Kinnersley was out of town, so thai ha
could not meet with him. At length Mr. Tm*
kins intimated that Mr. Kinnersley carad i^||
to see him, but would come the next dxf^
Mr. Bird himself upon this affair. Acoordiartl
on or about the 16th of September, tha K
fendant, Kinnersley, came to Mr. Bird at his
compting-house : Mr. Bird, not kuowingwli
he was, seeing a clergyman come in his govai
and looking a little at him, he said hia aiBi
was Kinnersley. He hereupon said that bf
had a note of his hand left with him for a •»
curity ; to which he replied, 1 know, Sur, thil
you nave, and it is for 1,S60/. payablo la thni
months to 5Ir. Edwards or his order ; that ht
said that the note was of his own hand- wriliap
but immediately added, How it came to baaif
dorsed by Mr. Edwards 1 know not. Thi^
gentlemen, you must take particular notioaef
because this was tbe first mention of Mr. U>
wards's indorsement: at that time Mr. mm
had not mentioned that, nor shewed biAlhl
note; when Mr. Kinnersley haviojp owneathi
note to be his hand- writing, immediately a '^''
but how it came to be indorsed by Mr. £di
I know not ; naming thus the particular p
who was the indorser of this note. He nMb
that Mr. Kinncruley was in a great oonatcmii
tion at that time, and said Uiat he waa an aa-
done man, among other expressions. And hi
said likewise, that BIr. Edwards was a gCBll^
man of substance \ and this he declared, Uioagil
Mr. Bird had not shewn him tbe note at tB|(
time: I am (said he) an undone man; Ik*-
£d wards is a man of substance. This he Mi4
before that the note was shewn to him, or wm§
declaration was made by Mr. Bird, relating tt
Mr. Edwards's being the indorser of this nolii
He said further that he was nut in a capacitf
to pay this money ; and that tliey roust appqf
to Mr. Edwards, who was a substantial aia%
for it. Gentlemen, this was made use of aa#
sort of defence at this time to avoid this thiog^
to put it off from himself by this argooMBti
why Bird should not come upon KinneraliEy
himself, who was uncapable of_payinr hnBf

Iwards,

but take his remedy against Mr. Edi
was a substantial man. He was cross-i
mined: tbe counsel for tbe defiendant asJbed
who was the person that recommended Mc»
Hales to him as the borrower of this monev 2
It was answered. That it was sir Bibv Lmu^
He was asked on whose credit he lent ut no^
nej, |h,iialfii'» tc Ur. Edwaada'tf tt vw

WpA, m it mint tiv h) such a ir&ss*
!B, aiNm this Ihenote mts read ^ for it
rivea directly from the hands of the
t flflin, tfattt was vofiicient cau^e to
Mie, and hy it hefore you. Accord -
ptpeara to bw dnte Augmt 16, 1727»
MMiisMfy iMACy nimriug thns :

■liae la pay to Saai«el £dwardi| eiq.

4irft witiiiu tbrae HiOBiha after date,

lif ftw#lfia huulred and aixty pounds,

noBMrad,

-* '* Ttaoxaa KuaEiisLsr."

BCi the {ndorsemeDt : and there, there
■D the top, ** Pray pay to the order
I there ia a large Diana, then comes,
ae rtofrived," and then there is the
ioB «« Samuel Edvrards." Gentle-
m ibis it is proper to take notice of the
DBS made by the counsel for the prb-
011 the manner of the writing of this
mt. Thev obserre that this must be
pffiom by Mr. Edwards of his name for
Br the nassm^ of a letter free : it ap-
rv probable frum the manner of bis
nrank. « Free ' and not * frank ' is
Alt he makes use of: and upon what
v what remains in this note, they say,
wt top it appears that it must be cut
wmie other note, and that there is an
! irhere thev suppose that some other
BK ; that there is the appearance of
If, not a blot, but tlie appearance of
nder of a lelter or figure on this place,
! appearance of a little dash from it.
say that ' for the' issubsiiituted for
* firec ;• that it appears by the ihick-
le letters, by the ink, and by the man-
ein the letters are put thore ; anil by
of tlie ff which !\ir. Kdnanls makes
ird * ffree ;' and that there is still the
ee of the remainder oFone or botli the
>on this, gentlemen, you will consider
the o and the r have not the appcar-
ome other letters under them, aud bo-
e /*and the r. It is plain upon sight
tne other letters seem wrote of the
Rigth and thickness wIJi the /* and r.
«Gms paler and thinner, ..ud of a dif-
k from the other letters. And then,
!n, the word Mho' is here written at
Yon will consider whether this seems
are been from a nect'ssity to put some
ird to fill the whole compass of the
ree.* Now • the ' seems not wrote at
le time, and with the same ink with
eceired.' If this had liern wrote all at
etime, it is prett}' extraordiuary that it
■ol hare been wrote even. The / is
a strait line even uith * value received,'
I sioks a little, an*] the r comes under.
D oonsider, gent!emen, whetficr there
icicat room, and whether this was the
r patting it so. Tfaese considerations
t we of to make it probable that it was

A.D, 1729.

[254

wrote at difllprent times : if so, it ia most pro*
bable that it was at first * free,* and that th«
otiier worda were substituted aflerwards. 8o
that these are the obserrations as to the manner
of writipg it, wluch you are to consider whe-
ther they are tme, and there be a foundation
for them or not. Mr. Spicer then was called,
who hath been a clerk to Mr. Edwards in th«
Escfaequer between ten and eleven years, but
hath been in his service about twenty- four
years. The note was shewn to him, and h^
teils you, that as to the name, he takes it to \m
the proper hand-writing of Mr. Samuel Ed-
wards, nis master: the J he also counts to b*
bis. Upon his observation and oath, which it
evidence to be left to yon, the word * for ' i»
wrote oyer otiier letters, and he believes, upoa
his oath, that the first word was ' ffree.' Htt
saithflhat Mr. Edwards, vrhen he mdcetb %
frank, makes nse of a ^as in the mauoer that
it here stands. If it was made fbr * valae re-
ceived ' at first, it is pretty extraordinary that
a ff shouM be written, and not a single f as
usual. Wh^ (saith he) it is my maater's inaal
way of writing ' ffree.* And then he saith thai
he always wrote ^ ffree' and not 'frank;'
which is material, as the word *• frank ' might
not so well correspond with tlus alteration. Hs
saith that the r seems visible, and to stand be-
tween the 0 and r. You ^11 see whether
there be the remainder of any such letter or no $
since he aaith that he doth think that the r ia
visible. He tells you, that as he is clerk \m
ftlr. Edwards, so he is acquainted with bis pri-
vate affairs, relating to his estate and the like»
and that he doth not know of any money trans-
actions between his master and either of the
defendants ; that he is so well acquainted \i ith
his affairs, and the nature of his employment
under Mr. Edwards such, that he believes that
if any such dealings had been, it would have
come to his cognizance. He tctU you, like-
wise, that Mr. Edwards is not a person that
nseth to deal this way : it was very proper ta
ask him this, because it is common for many
persons to indorse notes in this manner, m
saith that it is not his usual custom : it cometb
not into his public business ; and, as to his pri-
vate transactions, he never knew him to do it.
They were then going to call a witness to prove
the body of the note to be Mr. Kinnersley'a
hand-writing. Upon this, Mr. Kinucrsfey
took upon him to admit that it was all his own
hand -writing;. So then it is to be taken for
confessed, that tlic body of the note was his
writing. It is written in this manner,

^'Au^ii 16, ir^r.
" f promise to pay to Samuel Edwards, esq.
or his order, three months atier date, the sum
of twelve hundred and sixty poundii, Ihr Taloe
rcoeived, Thomas Kimmebslet."

" -f . li«60.

Well, gentlemen, after this, the cpiinscl for the
prosecution sny, that Mr. Kinncrsley iKith ia

855]

3 GEORGE II. Trial qf Wnu Haks and T. IRnnerdey^

effect confened as ranch as amoanli to what
tliey stand io need of to oonvict bim of thiafor*
)(ery. First, they call Mr. Wrig^ht, who was
present at the exanaination of Mr. Kinnerslev
uefore sir Richard Hopkins. Mr. Wrii^t tells
\ou, that at that time tlie defendant Kinners-
ley owned that the note was all his own hand-
writing ; that Mr. Edwards thereupon asked
bim why he drew the note payable to him,
when there never had been any dealings be-
tween them. Mr. Wright sulh, that the de-
fendant Kinnersley owned at that time
that there never had been any dealings
between them, and likewise that he did not
know Mr. Edwards, nor had, to the best of his
knowledge, ever seen him till then before sir
Richard. But he said, that the reason of his
doing it was this : that he was indebted to the
other defendant Hales in a sum of such an
amount and more ; and that Hales desired him,
the defendant Kinnersley, to write him a pro-
miffsory note for that sum ; that he asked Mr.
Hales whom he should make the note payable
to, and Mr. Hales said to Samuel Edwards,
esq. and that accordingly he wrote the note in
that manner that it now appears in to you upon
the request of Mr. Hales. Mr. Wright tells
yoo, that at that time he had heard what had

Sast relating to the discourse with Bird ; and
e told him, Why you have expressed your-
ielf as if you was a ruined and undone man ;
why did you say that, if Mr. Hales requested
your writing him a note for such a sum as
1,260/. ? Upon this, one Mitford said to Mr.
Kinnersley, You shall not go on to declare
yourself any further, you may do yourself an
injury. This is made use of as a circumstance
by the kin^r's counsel, that Mr. Kinnersley was
going to explain himself further if he had not
been prevented by his friend or solicitor, who
knew the consequence of a confession of this
nature.* Mr. Wright tells you, that at this
time when Mr. Bird was examined, and said
that he had not at that time shewed the note to
Kinnersley, when he said, that how it came to
be indorsed by Mr. Edwards he could not tell.
Mr. Edwards hereupon asked him whether he
knew of this indorsement before Mr. Bird
shewed him the note P That he answered that
he did, but that how it came there he could not
net tell. So that that is the substance of his
confession in that respect, that he did know of
it, though he saiil he knew not how it came
there. Sir Richard Hopkins likewise was
called to give an account of what passed before
him: hesaith that he took minutes of what
passed ; that it was in the latter end of Sep-
tember that be was brought before him charged
with forgery of two notes, this of l,2(jO/. and
another of 1,600/. ; that as to this note, it
seemed to him an altered note, which wan the
occasion of his more strict examination of the
matter. He saith, that he examined Mr. Bird,
who advanced this money, who said that before
he bad shewn this note to Mr. SJnnersley,
when he had only told him that he had a note
•f liif himd ItiX with him for a seciirityi he

answered, I know that yoa have: it

1,S60/. payable in three months to fe^
Edwards, esq. or his ordefy and b indor ■
Samuel Edvnurds. Sir Richard hereapoi^B
Mr. Edwards if he had had any dcahnc-:
Mr. Kinnersley ? Who said that ha h^
Kinnersley also said the same, but said ^ I
drew this note payable to Mr. Edwards ^
request of the other defendant Hales, ti^ ^
he was indebted in' that sum, and warm
that he did not know Mr. Edwards, nor ^
best of his knowledge had ever seen hint b^
that time. He saith, that upon his obse^
that it was very strange that he should ^
such a note payable to a person with wbo^
owned that be had no dealings, and who
an ntter stranger to him, Kinnersley wug^
further to open his mind, but one wSs^
stopt and prevented bim from going
Richard Davis, who is the constable that '>
prehended him, was next called to give an i
count of what passed when the warrant «i
issued out, and given him to be executed. 1
tells you, that because Mr. SJnnenley livi
out of the city, he went to a publk: has
within the jurisdiction of the city, and scnl
porter to desire to speak with uim ; but i
ceived answer that he was not in town. I
enquired when he would be in town, a
went himself and made a pretence of a 0M|
wanting to be married. At first came i
the daughter, and tlien the mother, wh
he acquaint^ with his business: at 6
they seemed to say that he was not at boB
or did not readily say where he was; I
after that he had given an account of I
business, he was carried into the parioi
and then Mr. Kinnersley came to him. i
told him the business of the marriage : t^ <
fendant thereupon asked him several queatKN
and, among the rest, how old the lady to
married was? This is necessary to be mi
tioned, because they have insisted upon it i
proof of his honesty, that he asked whcti
she was of aj^fe or not ? And being Udd t
she was not, then asked whether there waso
sent of relations or not ? If (said he) there
not, I will not be concerned m a thing of t
nature for 100/. He was told that the bi
tlier was with her at the Magpye tovem, i
asked to go thither for satisfaction, but wo
not go. Upon this the constable saith, that
went away, and made it liis business to wa
and see when Mr. Kinnersley came out.
an hour or two he came out, he dogged him
theI\1inories, then when he was come wi
in Aldgate, he told him that he had a warr
against him for forg^ery of a note of ],3^
lie then desired him to go into a house w
him, where he asked to sec the warrant : Ui
seeing it, he said, that if the gentleman I
sent for him he should readily have come
bim. Being asked why he denied himsc
He anstrered, that be was afraid of being >
rested for ilebt, and that Vas the reason of
denying himself when the constable caino
enquire for him. lie then owned that the A

tt f krf wilii% i but jud that he
')m the ndorMmciit came thert.
vilhvhiiwas nid by the coonael,
ly Ai ■iiiMiii, €90ooeniiiig what
Ub bmi hie ezamination bcfoie
Bipkiiii, aod to Mr. Bird at hia
vbn he came to him. Thia
at ta the fact The counsel
go on and aaj, that there
frinM eonrespondence carried on
tva deftnoantay which they in-
■lawiancii to make it likely that
krHB. They called to this, first,
I Bfebi who aaith, that both the de-
wilSBMt froqnantly at hia house ;
" ' I fnmntly came there early in
waoid aometimea walk about a
liae, would ask aometimes if the
WbRothera witboot naming him,
bfw whom be meant, baring fre-
dieai together ; that some time
came in, Halea sitting by
m go by and went to him ;
Eiaaersley came in and went
eite-room into a back room, and
Mlow afier him, and they would
tligiether; Kinnersler sometimes
Rrt at one door, and Hales imme-
artat the other ; that this contioned
• OMMtb or three weeks beibre Mr.
Mcbeosion; that onetime particn-
hlaDerriey paaaed by and went down
sad Ifr. Halea aeeing him, rose
■Mtaot after him ; this, he saith, was
MSth beibre the defendant Halea was
ifi He aaith, that they seldom sat
ifte aablie room, bat went into a pri-
Jobn Brooks was next called, who
Im keeps a coffee- boose io Dnwn-
yHii Westminster. He said, that Mr.
gwfcy osed to come someth&ca to his
jPhsK, send for a porter, and git e him a
flNr Mr. Hales, who hath come to him,
Hhf htte gone into a prJTate part of the
Mm there they hare staid fbr three or
W^^t^ to^ber ; that it bein? in the eren-
n hitfa thought them in the dark, and
Mike serf ant why a candle was not car-
MiaB? Who hath answered, that he had
Mthcm one, bnt they refused it, not car-
Ibleioterropted ; that they met thus about
mm foor times in a month, a little while
plHr. Hales was apprehended . M r. Jane-
1^ was called, who saith, that he hath
Mk two defendants aereral times retire up
bl^|Mlier at hia coffee-house. This, gen-
n,B relied upon, and given in evidence,
ke that there waa a correspondence be-
■ Am about some affairs not so proper to
iMSfsd in public. This is the substance
b evidence on the side of the prosecution :
Ikeesunsel for the king tell you, that as to
^ sf this nature, they must be done in a
'prirate way in order to prevent a disco-
"f it caunot be expected that they would
pmns to eee aoch a thing done ; that the
evidence, therefore, that can be given is

Ju D. 17».

[£58

dremnilaaee. Well, gentlemen, the defen*
danu come upon their defence : they appear
by different counael, and make a separate de-
fienoe. The counsel on the behalf of the do*
fendant Halea insist that there waa a debt du«
from Kinnersley to Hales, for which this not*
was given ; that this doth appear from the ae*
veral declarationa made by Mr. Kinnersley
from time to time. They rely upon this ai
evidence of such a debt for money ailvanced Io
him, and that this note was given by the de-
fendant Kini^ersley for such a debt. Thcv tall
you that-Mr. Halea being a bankrupt, and there-
lore it not being firoper to have such a note in
hia own name, because it would be liable to bo
claimed by the asaigneea in the commission of
bankruptcy against him, that therefore it wan
proper to make oae of the name of another per-
aon ; that Mr. Edwarda waa never affected or
injured hereby ; that part of the monejr hath
been paid, and if they had had a little patience,
as 4001. waa paid, ao the rest would have beea
paid. And tbongh they admit that the mak-
mg of such a note in toe name of another to
advance credit without hia leave was crimuwl,
yet it did not, they aay, really affect or injaro
him. And then to shew that there waa a reo«
son or foundation for the giving of this note^
they said that they wonld call witness that
there waa an account stated, upon which thia
money appeared to lie due. They called Ro-
bert Burkit to it : bnt he saiih that he knoweth
of no auch account, it is all imagination ; thai
his name was made use of without his know-
ledge ; that he knew nothing of any money
ever due between them : so that it w plaui.
that that witness is lost in tlie ezamination ao
to any benefit to them. They said tliat thev hail
ao'rther witness who happened not to lie here :
this is the substance of the defence of the de-
fendant Halea. Kmnersley then comes ou hia
defence. His counsel insist that he is not evi-
denced to be cooeemed and knowing of tbio
forgery ; that as this is a crime of a very hein-
ous nature, and deserves the greatest punuh-
ment, ao it is necewarv that tlie dearest proof
should be given you before you convict him.
Tbey say that bis character likewise rMpiirei
stronger evidence than oilier* ; that his cradit
is more concerned than othem, because the
very ezerciae of his function deptfmls up<Hi hia
credit, witboot which lie will be ol imi um; in
the parish wh<rr« be doth or aiay miiiisti:r. Ami
tbey say, that it appears by tlie evidcnci^ <hi
the side of the prosecution, that Ih' i« ti**y
careful iothe d»setiar|^« «if \\\% ftiucii»ii. tilii^^h
they insist on from his refusal to \i^ < iiuo"!*!**'
in a marriage without a lioeooe and «<'(«•<'" ^ ^
friendH, it Mng contrary to actn «i p«ili«"«»«*
and to the canons of the cburrh. nud ibvi tiiej
«uppnne him as cautious in «iih»t lb*" J?*- ^'^.^
say, timt the thing itself ik ii»>i«l* <*"^ '^^
it IS an innocent and harrrilr«k thrna ; ">*- ^
iierson is hurt by auoti«<r'« «if •»•"!?'' y*
liim a sum of money by aof-li « ii«4r : >'• ' ^^

pemoii, indeed, who r<»«» *«••'*• ■ ^^^ * *****
to an action for the iftottvy, but that than «^ ••

<»■

259J

3 GEORGE II. Trial of Wm. Hales and T. Kxnnerde^^ [

injury done to the person to whom it is marie
payable ; that therefore as to Mr. Kinnersle> 's
subscnbinin' a note fur so much money payable
to Samuel Edwards, esq. especially when it
was done iiprm the recjuest of the defendant
Hales, upon account of a debt which was due
from bini to Hales, and for the oon?enience of
Hales, it was an innocent tliinfi^ ; that Kinners-
ley was to pay Hales so much money, and
riales himself desired a note for it in this name.
They say that Kinnersley might he induced to
do this from the credit and character of Hales,
and from their former acquaintance ; that he
was the minister in his parish when the
partnership Was between him and sir Ste-

{ibcn Evance; that notwithstandinfir his mis-
ortunes since that finit acquaintance, it is
plain that he hath been corres|)onded with
by persons of credit, therefore there can be
DO reflection on that head on Mr. Kinners-
ley. And they say, that as there was no-
thmjf culpable in p^ivin^ of the note, so nothing
amiss liaih happened thereu|ion ; that if Mr.
Hales hath dono any thing amiss, it does not
affect Mr. Kinnc rsley . Though they raise Mr.
Hales's credit at first, yet atlerward they sinic
it, and seem to throw the blame upon him.
Tliev plead also, that there is no evidence that
the mdorsement was upon the note when it was
subscribeil by Mr. Kinnersley. If it was after-
wards (say they) indorsed with or without
authority from Mr. Edwards, it will not affect
Kinnersley, except there be express proof that
he did it. Thev say also, that there is no proof
of any franks clelivered to Kinnersley but only
to Hales ; that he bad not therefore the oppor-
tunity that Hales might have ; that therefore
he is not involved in that circumstance or tiic
inducement hereto ; that I lie proof or evidence
given is nothing nofainst him. And then (say
they) to what purpose bhnuld the note be con-
trived to be inil(M8(^d with the privity of Kinner-
sley, when he hath no manner of benefit thereby.
Hales having received the money ? They ask
the question c\i\ honv^ and thence infer that
Kinnersley could n«)t do this. And they insist
upon it in point of law, that the writing of this
note can be no fraud in him, he having done
what renders him liable to an action. And to
shew that the money was due from Kinnersley
to Hales, they have tailed several witnesses to
shew that there was a foundation for this note.
Mr. Peter Marsh was called : He saith, that
about ten or eleven years ago he brought a
bond of 50/. to him made by Mr. Kinnersley

Eayabletobim. Mr. Hales told him, that Mr.
Linnersley owed him this money, and had
ffiven him this note made payable to* him, which
he desirefl him therefore to get for him. He
knew nothing of the matter, was surprised that
liis name was made use of, and so returned the
bond again. This is insisted upon, gentlemen,
to shew that there were transactions l>etwcen
Kinnersley and Hales. Now wlietlier this
|imvea a debt due from the one to tbe other, or
|iroTM ao extraordinary method of taking bonds
IB tht ii|n« of pcffOM whboai thtir ooiiitat,

Tou are to consider ; especially when ^o« i
Know that if this bonit had been put in mi
Peter Marsh, he would have been liable t
cover the money. Well, then William Cn
iK next called. He saiih, that he reeeit
Janeway's coffee-house about 60/. a debt
was due from Kinnersley to him. He reo
it of the defendant Halei, and Kinner»ley
there with him at that time. He saith,
Kinnersley was the original debtor i^f
money, and that Hales gave him his note i
He saith, that Kinnei-sley had borrowed ol
an hundred and odd pounds ; that he bro
another gentleman to be securitv with bii
it ; that at the end of six months he oouk
get his money ; ttiat he enquired of Kinne
tor it, who led him a dance fi-om place to |
after him for a considerable time ; that a
he was forced to sue for the money ; auc
covered half from the other gentleman ;
he then prosecuted Kinnersley for the i
that then Kinnersley met him with Mr. I:
at some tavern, and then Hales told him
he was to receive about 6 or 700/. within «
three months time, and then he would pay I
He saith, that upon that offer of Hales he
a note of Hales, and a new one of Kinnet
for the money ; and that in February
he got the money as before- mentioned,
received it at Jaiieway's coffee- liOU»e.
he saitli, that some little mutter (about
shillings or thereabouts) was due for
charges, for which he gave him his i
Hales gave his note for the nnyment of t
of Kinnersley 's, a debt of 50f.,*and he gave
reason tor it, that he was to receive withii
months about 0 or 700/. for him, and then
he could venture being security for Kinner
This is a transaction of quite another na
it is so far from proving a debt from Kinne
to Hales, that it rattier proves Hales ind«
, and becoming security for the other. \
\ then John Wells is called. He saith, tbi
i knoweth not of any money due from
i nerslcy to Hales, but that Kinnersley <
: him 100/. ; tiiat afterwardi this money

• |>aid to his attorney, by whom or how he <

• not tell. Mr. Simpson, who is a partner
' Mr. Fowler, is then asked concerning
' borrowed upon some lottery tickets of
j Fowler, and is asked concerning this mi

how, where, and by whom it was ilischar

He saith, that he it as not at tbe shop

knoweth not by whom and hotv it was

charged. Mr. Kinnersley, upon this, b|

himself to one of the !;eiiileiiien of the ,

>and interrogates him how this nmney was

j Mr. Fowler was liereiiptm sworn tu give

, dence. Upon his oath, he saiili, that ha i

knew of any transaction in the name of H

that he never saw hini at his shop. That

Kinnersley there was a transactioo uf ro

borrowed on lottery tickets, but he kno

nothing of E^ules's being conccrnetl. Aa

person is examined whether he ever g;

<note on Mr. Hales's accouiii, or at bis re

paid any mouay ? He saith, that be iie?«

JiiT a Misdemeanor.

lowctfi thtt iny other did. They tell
», that tbe witncMeii for the prosecution
im gnat netsure proved the denial oi'
ioDcrslej of bisknowinH^ of the indorse-

bal the? call tbemseWes for further
itMenoeorit. They cail Mr. John Hayes,
ilh Ibat he was present at tbe examination
ijHieralev before sir Richard Hopkins ;
ibMrime the defendant Kinnersley owned
ijStf the body of tbe mite, but at the
iMt said, that how tbe indorsement came
besald not tel]. He tells you tliat the
I ihac was g^Ten to tbe defendant Kin-
', was after this declaration made by
fcaithen there was an admonition that he
he eaotious in the answers that be japiTe.
drew Grants likewise was present at that
atioo. He saith, that that was all Ibat
illhat time, and that he was notstoppeil
Mitibfd, but onlv a reasonahle caution
im that he should not betoo much in an
•r the like. This is the substance of
made by the counsel for both tbe
It is the right of the counsel for
f to reply. They say, that there bath
I avidence of transactions between Kin-

aod Hales to tbe amount of any such
I the note is for ; that if the note was
rith a design to ^efraud, both mast be
r guilty ; and that it is a very eztraordi-
mg that this note should be written by
mmiey as a promissory note/or such a
yable to Samuel Edwards, esq. when it
itappear, on the defendant's part, that
rat any correspondence between £d-
■d Kinncrsley,'and on their side it bath
isfcd that there was no such correspon-
. that it was very extraordinary if this
IB ffiTeti for a debt due, that it should lie
i the name of one with whom they had
ifY-dealingswhatsoeTer, and of er whom
aid not be supposed to have any power ;
is therefore seems to be only to give a
> the note ; that it could not be of any use
ever without having tbe name of some
nf drcumstaoce and condition to it who
le obligefl to pay the note ; thut this note
ive been thrown upon Mr. Edwards, ap •
bey say) from the declaration of Kin-
, that he was an undone man. If then
if any use to borrow money upon or in
•er way, it must be from the substance of
iwards, and not from the poverty and
icy of Kinnersley. They insist upon
cumstance, and the declaration of Kin-
, that he knew of that indorsement,
Ikiw it came there, be said that he knew
iod further they say, that as the name
'• Edwards's own baud-writing, if that
nd * ffree' was wrote unon tbe paper, it
» before the writing or the hofly of the
It caanot be imagined that the words
et there before. It cannot be supposed
r. Edwards would set his name to the
ftce,' or to any other woid on the back
Me pffomising the payment of 1,260/.,
to him or his order. They

A. D. 1729. [262

insist, therefore, that this name and the word
*• ffree' were upon the pa|ier before the note was
wrote, and that this is a strong and reasonable
evideuce that Kinnersley must be privy lo the
name of Edwanis, and tbe indorsement at that
time. After that, Mr. Kinnersley desired to be
heard, and he was indulgetl : but as to thai you
have been informed, that in indictments for
misdemeanours, whatever the defendant saith
for himself, it will have no further validity than
as the counsel insist, and evidence is brought
for him. Tbe cireumslance, therefore, is very
different from what is allowed when persons
are pn>secuted in capital cases. However, you
have heard how he bath declared in the most
solemn manner his innocence. You are to con-
si<ler whether that is of any validity, unless
there was evidence of such a debt due from the
defendant Kinnersley to Hales the other de-
fendanty whether you will take it upon his
word. Tilts being the evidence on both sides,
tbe first question is, whether tbe indorsement is
forged, because till you determine that it is a
forged indorsement, there can be no prosecu-
tion for tbe publication of it. If it be a true
indorsement, no person can be guilty of the
publication, mncn less can Mr. Kinnersley,
who did not deliver the note: that therefore
lieth upon the defence of Mr. Hales, which is
not made but by the defence of Kinnersley.
You are to consider then the opjiortunity that
tlie defendant might take hold ot from the re-
ceiving of franks for several years from Mr.
Edwanis ; and you will consider whether there
is any clear proof, or so much as the colour of
it, that Mr. Edwanis was privy to an indornc-
ment of this nature, or there was any occasion
for such an indorsement. If no such money
was indeed due, to what purpose should the
note be indorsed ? Upon the best observations
that I can make, 1 see not any evideuce to
raise a reasonable presumption Ironi, that this
was a fair and justifiable indorst-ment. if it
was not an imposition on Mr. Edwards, because
it makes him liable as an intlor^<er for the sum
mentioned in the note, if you should find thaty
yet you are to conttider whether it is fhir to
make use of another's name in a note ; for Mr.
Kinnersley, who by his own confessiiin is a
poor, undone man, and whose living is under a
sequestration, to make a note indorsed, by an-
other iierson who can never be reimbursed by
this |>erson who subscribed the note, it i^ta very
extraordinary way ; though they say that it is
an innocent way of raising money, for a |)er-
son in custody, or liable to it, to make use of
the name of a substantial person in such a iiote^
\t hose credit must be at stake for the money.
And then as to the nature of the note : if it was
only a promiss(»ry note tor so much money
payable to Samuel Edwards, esq. it was not of
such consequeuce, tor then he was not liable :
but he is liable to the payment «inly upon the
iiuiorseinent of such a nuie. Why ihen, gen-
tlemen, you are to consider, wlu'ther thi<i uote,
when Mr. Kinnersley hud wrote it, could tie of
any use in the world unlcs» it w&a iadorsed af«

ies]

$ GEORGE IL Trial of Wnu Hates and Tn KimerJey.

tsrwards. Whr then this note is either a pre-
paration to obtain "Mr. Edwanls's roluntary in-
doraement for a secarity, or an imposition upon
bim. Hath an^ evidence been prod need to
shew a probabihty thct Mr. Edwards would
gire him that liberty to transfer his own insuffi-
ciency and poverty upon him, and make him
liable to Mr. Edwards, which can have no effect
but by an indorsement ; doth not Mr. Kinners-
ley put it into the power of Hales to negociate
this note ? Therefore I mnst inform you, if two
persons contrive together to draw such a note,
And make nse of it, both persons concerned in
the transaction, in my opmion, will be guilty.
Forgery is an entire ract. Though one person
doth one part, and another the other, -both are
^uallv guilty.* Gentlemen, it is material, as
liath been observed, to consider when this in-
dorsement was made ; and if it was a forged in -
dor8ement,you ^vill consider when it will appear
to have been indorsed. You have been truly told
that this can be only known by circumstances :
therefore you are to consider, whether the name
uf Samuel Edwards can be supposed to be set
tliere after the note was wrote. Well then, what
is the proper and natural way of understanding
this transaction ? If there be the name of
a person on any paper, where there is room for
making an alteration, what is natural ? Why,
to transact on the other aide what is necessary
to supplir and make that complete, without
vhich the name would be to no purpose.
Therefore, that is a material consideration $ if
it ia impossible that the name could be wrote
mAer the making of the note, whether that be
not a reasonable presumption that be saw this
indorsement when he wrote this note. Sup-
pose the words only * ffree Samuel Edwards,'
It was not proper to write this note on the back
of it. If this indorsement was made without
bis privity, how came he to know of it when
be came to Mr. Bird ? And upon Mr. Bird's
telling him that he had a note of his left with
bim, immediately answered, ** 1 know that
you have ; it is fur so much, payable in three
months to Mr. Edwards, but how it came in-
dorsed bv him I know not ;" when Mr. Bird
iwearstbat he had not then acquainted him
with the indorsement, nor showed him the note
mt that time. No evidence hath been produced
to shew how be came to know that it was in-
dorsed. He declared, indeed, that he knew
not how it came to be indorsed : bnt you are to
consider, whether that part wherem he de-
clares biy knowledge is to be regarded, or what
be declares he knows not of, A declaration of
this nature will be taken most strongly against

* See Eitt'0 Pleas of the Crown, ch. 19,
•.51.

him. Consider, therefore, whether this
part of his declaratkm be sufficient to disc
nim. If he knew that it was indorsee
should have some evidence upon what ac
it was. As to the rest, as to the eharact<
coat, or Uie like, you are to try bim npc
same law with Hales. I know not wh
habit he wears ahould exempt him Iroi
common rules of proof. As to tbo port
circumstance of his usefulness depend!
his credit, that is left to yon. But the
law is made for one that is for aaetber :
are therefore to consider of it. If this be
indorsement you must acquit both. I
are satisfied that it is not, but the indoro
is a forged indorsement, whether eithe
which of the defendants seems to he |^
You are to consider tbo nature and di
stances of the transaction, and whether
appears any thing to distinguish the one
the other, and accordingly give your v
against the one or the other. If you dei
the note will be given to you.

Jury. My lord, if your lordship pleas
will take the note up with us.

Kinnerdev. I desire to be heard — ^-

L. C. B. Not in case of a misderoeanc
know not any instance in whioh it hath
allowed.

Kinnersley. 1 beg leave, my lord. I
the Lord to witness — —

L, C. B. All I can say is, if you b)
mind to aver or affirm any thing, the <
would rather be irregular than abridge j
any thinif.

Sen. Whituker. My lord, it never wi
lowed; after your lordship baa summc
the evidence, and the jory gating out :
strange Mr. Kinnersley will behave so.

Att. Gen, Is it, my lord, to be allowf*

L. C. B. The gentlemen have insisted
it. You cannot be heard.

Kinnersley, By the living Ood, 1 kno^
thing of it !

CL ofArr. [Calling over the Jury.]
you all agreed in your verdict P

Jurymen, All.

Clerk, Who shall speak for yon r

Jurymen, Our foreman.

Clerk, How say you, is William !
Guilty of the misdemeanor wherewith he i
charged, in forging an indoraeroent on a
missory note for 1,960/. in the name of Si
Edwards, esq. and publishing the same I
ingitto be forged, or Not Guilty }

Foreman, Guihy.

Clerk. How say you, is Thomas KhnM
Guilty of the satd'misdemeanour wbeviwj
stands charged, or Not Gnilty.

Foremgn. Gailty«

Trid^fWmamHaki.

A.D. 17C(k

fj. The Trial of William Hales,* for a Misdemeanor, in ob-
taining from Thomas Bird the Sum of Seven Hundred and
fifty Pounds by false Tokens^ &c. : 3 Geouge H. a. d. I729.

Tbe Jury calM orer agaiD.
te«Mi OyEZ, Oyez, If any om can

I^DICTMCn'.

Hales ttands indicted bj the name
Halea, &c. for falsi? and deceitfully
_ tba ran of 7502. of Tliomias Bird by
^AhttDken, m. a promiaaory note, in these
' MIowiag:

*< Augtat 16, 1727.

• ^ I proniae to pay to Samuel Ed ivards, esq.

Illiisider» within three months after date,

fcanof twelve hundred and sixty pounds,

•^■he rceeif ed, Thomas Kinnersley."

On vhicfa Qote there is the foIlowin|^ ind<ir8e-

"hiy pay to the order of for value

Sahubl Edwards."

iif great damage of Samuel Edwards, esq.
ku To ibia indictoMnt he hath pleaded nut

Wr. Strange, May it please your lordship,

iiaia indictment against the prisoner Wil-

" la Bales only . It seta forth that be, having

IkbpBMessibn a certain writing purporting to

hi promissory note made in the name of

Ihiu Kiouersley, wherein the said Thomas

faniLy is supposed to promise to pay the

Mif lfS60/. to Samuel Edwards, esq. within

te nonths, with a forged indorsement of

Ir. Edwards on that note, did, in March last,

AUj sad deceitfully obtain of Mr. Thomas

> Ini, tbeaoni of 7S0/. by that false token.

K islsid to be contrary to the statute in that

ott nade, to the damage of 8amuel Edwards,

M^ &e. to the breach of his majesty's peace,

^ to the ill examph! of hia majesty's subjects

■fta ease offending.

Mt. Gen. My lord, this is an indictment
VMBst Mr. William Hales, for obtaining a sttm
^9tamey by the false token of this note. For
ihwa will only call Mr. Bird.

Mr. Bird sworn.

4ll. Gen. Mr. Bird, look upon the note, and
fifSiii account who brought it to you, and
vbat money you paid upon it ?

Bird. Mr. William Hales brought it to me
M March 20th, last.

Att. Gen. What did be say ?

Bird, He said, that at the request of a gen-
flnnan, I was to lend him 760/. upon that note.

dtt. Gen, Did he produce the note?

* bsethe preoadiDg and folbwing Caaci.

Bird. Yea, Sir, I had it then of him.

Att. Gen. Waa it then indorsed as it is now f

Bird, Yes, Sir, in the manner as now.

Att. Gen, How much money did you d«*
lirer him upon ii?— Bird. 760/.

L. C B. Pengelljf. Diil you deliver it, when
he delivered you ihis note?

Bird. Yes, my lord.

Att, Gen. Should yon have let him bav#
this money if he had not produced tbia uoteT

Bird. No, Sir.

Att. Gen. What waa it paid in?

Bird In one or more B^ok- notes.

Seri. Ej^re. J submit tbia, my kwd : they
have laid ibis indictment but singly for obtain*
invr money, whereas in the former they Iayt4
doubly for obtaining money, or other valuable
things. It lietli therefore upou them to prove
that this Mr. Halea did receive in money.
Though 1 know that generally Bank-notes are
received as so much money, yet 1 know not
that according to law they are reckoned money.
They should therefore have laid it for money
or other valuable things, it bein^ two Bank*
notes, and not money : and in tbia manner, I
supftose, in case of a tender of money, it is not,
as I apprehend, thought thai a tender of Bank-
notes is a sufficient plea : Uie consequence then
is, that the giving of 760/. and the giving of
surh notes is not tantamount. They ought to
indict him as the fact really was.

Att. Gen. Do you know, Mr. Bird, of the
receiving of this money ? Did he complain of
his not receiving of this money ?

Bird. No, sir.

Serj. Whitakcr. Did he pay buck any of the
money? — Hird. Yes, Sir, 400/.

Serj. Whitaker. Was it U|»on the account of
those HHnknote:^? — Bird. Yes, Sir.

L. C. B. Then when he paid you bark that
money, did he complain that he had not re«
ceived it ? — Bird. No, uiy lord.

Serj. Eyre. Fray, Sir, i*id he say that he had
received it? — Bird. Yes, Sir.

L. C. B, Mr. Serjeant Eyre, I supposa you
do not insist upon it us necessary that be should
receive so much money of Mr. Bird, if he
received tlie produce of those notes it was suf-
ficient.

Serj. Ej/rc. My lord, I apprehend that though
he dill receive the money from the Bank for
ihone notes, he received not the money from
the hands of Mr. Bird. He received, indeed,
what I should have taken lor money. Es|M)-
cially as the act of parliament hath added, * or
any valuable thing,' as je\tels or the like. I
think it should have been so laid. 1 observo
the words used are, * by colour or means of a
fahio tuikea.' i woukl aak, suppose Mr. Bird

«67]

S GEORGE If. Trial of fTm. HaUt and T. KinnenUy, [968

bid oTiterei] him to receire it of his cashier, or
scut llie note to his goldsmilh, whose pBymcut
would it hare been i Suppoue he had sent him
tu llie Bunk to rec«vc that bioiipy before lie de-
lli«red up tlie note, certainr}' he had obtiiaed
the moony by colour or means of that note.

Hy lord, I admit that if it had

hcen paid by his servant or b^ his cashier upoD
a Dole drawD upon him for it, I lake it that it
Kiighl have leen laid either way.

^rj. Whilaktr. The Bauk in that respect
are but caabiera for the geutlemep that haie
Uieir notes.

!4erj. £yre. The oibec indictment kid it
doablv.

Judge Hi^tiuUt. Though they mi^t do that
by wav of caiitios, yet it might hare heen laid
ibe other way as ibis is.

L. C. B. Gentlemen of the Jury, yon are to
COD aider whether tbe indorsement on tbii note
was a forged indorcement ; for if it was uot
forged, tbe defendant cannot be said to obtain
Ibe money by a false token. And further you
are to consider, aa he obtained this of Hr.
Binl by thii false token, whether it ever came

to his hands Or not. You are to coiuiiler apos
ibe erideuce that be never cumulsiued that ha
had not received the money fur iboie bills, but,
on the contrary, paid back 400i., jiart of iba
money, wbelber he would have paid it if ha
had not received tlicnianey. Therefore, if yoa
apprehend that indorsement of the note was not
a forged indorsement, or that tbe money was
not |Mid, you are to acquit bim. But if yon
Judge that'tbc [ndnracmont upon the uule wu
forged, and the money Jiaid, whtlber it was
paid hv Mr. Bird in ninney, or in billa um
whicb be aflerwanis received money, I Ibiok
that thai makes no difference.

Jury called over.
Clerk. Are von all agreed in yonr TCrfidf

Llerk. Are \i
Tury. Agreed.
CUrk. Who sL

CUrk. Who shall speak for you T

Jury. Our Foreman.

Cltrk. How aay you, la M'illiam Haisi
G uilty of tbe misdemeanour whereof he standi
indicted in obtainiutf a sum of ntoney by thil
fidK token, or Not Guilty r

Fertntan. Guilty.

476. Tlie Trial of William Hales and Thomas Kinneuslet*
Clerk, for a Misdemeanor, for fraudulently forging a Pro-
missory Note, &c. in the Name of Samuel Edwards, esq.'
for Sixteen Hundred and Fifty Pounds, and publishing the
said Note, knowing the same to be forged : 3 George H.
A.D. 1729.

Jury called and atrom over again.
Clerk. OyEZ ! Oyez ! If any man can
joform, Sec,

Ikdicthext.
Gentlemen of the jury, William Hales and
Tiiomas Kinnenlry stand imlicled by the
names, &c. for frauJuleolly forgini; anoieora
writing, purporting to bea prumiisory note, on
the Snd of March, in ihe first year of bis ma.
jelly's reign, in ibe words following:

" I promise lo pay to Mr. Thomas Kinners-
ley, or his order, within six monlbs alter dale,
(he lum of sixteen hundred and GDy pounds,
for ibe value received, Simuel EnWABOs."
and Icnawingly and wittingly publiahing of this
aaa tme writiog, knowing it to be to forged
and couaterfeilM.
Hr. Straoife. May it please jonr lordihip,
, and ynu genllemen of Ibe jury, this is an in-
dictment Bgainsl the two prisonera William
Thomas KiDncreley
a forth, that they being persona of ill gery of ihii note wai by the same opportunity
' ' ' " lo deceive Hr. Edwarda, taken by Mr. Ualea, in eoqjuuclinn with 1*

Kionenley, that ibe former waa. It bath bt

* 8m the piMfdigy and f<rflotniig CiHii

Sec. onlheSd of Marcb, in thefirst year of his
majesty's reign, did forge a writing porporling
to be a promissory note, &c. The mdictment
further aela forth, that the defendants did like-
wise produce end publish IbltipromiBSory cole of
Mr. Edwards's Itir 1,650^ i tlinl knoning this
to be a Ibrged note, they did publish Ihe said'
note liir a true one. Il is laid in oilier words,
that they forged a nole of Samuel Edwanls's,
wbereby be ia supposed lo prorai^ to pay lo
Thomas Kiimerslev. Hitliio six months, the
sumori,660f..&c.' Toalllhese facts they boll)
have pleaded Nottiuiliy.

All. Gen. My lord and gentlemen of iht
jury, I a[n counsel for tbe king. Oeotlemeq,
Ibis is an indictment against both tbe de-
fvndants, fur forging a promiKsory note in lb*
name of Saniuel Eilwards, eMj. for 1,650'., pay-
able to Thomas Kinnemley, or order, wjihin
six miiDths after date, and aliio fur publishinc
Ibe same. And, gentlemen, lhou)[h il is lai3
•everal ways in iTie indiclmeiit, tlie note ii
one and tbe eanie. There arc nol several note*.
Hales and Thomas Kinncrs^ey. This indict- j Gentlemen, it will apnear to you that this for-
menlseta forth, that they being persona of ill gery of this note waa oy the same opportunity
fame, and intending to deceive Mr. Edwarda, uken by Mr. Ualea, in eo^juuclion with Hr.

. Kinneisley, that Ibe former waa. Itbatbb —

I obMntd alraady, thai in nicf of Ihii k

far a MitdemeHnor,

A.D. 17S9.

[S70

fieti are to be proTed oDly by circumstances.
PluD tail positive proof is not to l)e expected :
brtioch circumstances speak the truth often
BOicpIahily than the other way of proof doth.
As to II r. Hales, Mr. Edwards being too
•bligin^ to him, he made use of it to much the
■BB purpose as in the fbrmer case. But
ilii«not DOW to indorse, but to make a pro-

'.Ed-

nute fur 1,650/., payable by Mr
vwdi 10 Mr. Kinnersley, within six months
lAff ^te, and dated March SO, 1728. And,
imJfiDen, this note is signed on the back with
^ land- writing of Thomas Kinnersley. The
Biooerof this forgery will appear to have been
ike ibe other: but it will appear on the very
Uet of it manifestly a forgery. Gentlemen,
the note is wrote on a very small piece of paper,
vbich appears plainly to nave been cut oil from
umber paper. And, gentlemen, the words,
* hx the value received,' are uot wrote upon the
he with the other words, but a little below the
kM. The words ' for the' appear done in the
miie wanner as in the former note that before
caoe under your consideration. Here \s a ff"
neb a» before, and as Mr. Edwards always
iMtb, then an r which appears to be of the
wae hand, then an o crowded in between them
«bicb seems net of the original writing. One
tf Ibe u^a is made to serve tor the first stroke of
Ihr V, and a long stroke between the two ee'sy
tbro'ifae other e makes up the word y^. Then
'rihie received' is wrote in another manner of
bad. This seems to be the nature of the for-
fery; and none can doubt it a furt^ery that in-
apceia it. This appears to be done from n frank
coier i>btained from Mr. Edwards. And tliis is
tMrtbinir rcmnrkahie : it is Koinethiii^ odd
tini'fortlic vaiuf; received' should bc^ v.iotecn
i&o:.W line. It is plain that the words arf ret
ibssMli] because of the word wrote h t^rc, and
^thejf be«jriiiDir.g anothor line may make
the better appearance. This note is made pay-
able to Mr. Kiunerslry. He was an absolute
■tnoger to Mr. Edward?, as it appeared in the
P'Tmer case. There wns no dealing between
Ur. Edwards and Mr. Kinnersley, nor no co-
bur «it any such dealing!, hy which a debt of
iQch a sum as this should b(Vnme duo from Mr.
£dvards to Kinnersley. lint, gentlemen, this
Mtf thuH made for l.ti'tOl., payable within six
Bonttisfrom Mr.EdwanIs toKmuersley, with-
out ai!V ilt-alin^s between them to irivc'a foun-
duiun tor it, in the manner 1 hnve shewed von,
»nifh ts sufiicient to make it appear to any
a foitf-ry, is indorsed by Mr. KiunorRley.
That u ill appear a clear evidence of the forgery
^jf by Mr. Kinnersley. No man in hi*
KB^s would do this. If a for<;oi| note for
IjSoO/. waii made in ihp name of any person,
nd appeared in all these rircurnstaiicrs of a
pkin P>rgery, no man in his senses, and desit>'n-
iBKioact a fiair part, would make an iu'lorsc-
•mt tbetvtu. No other purpr»se. thfrrefore,
Kcms aimed at in the indorsitu; but to ^vi the
Metifoiog. If such a note wns olftTcd to a
fur sad bonett uian to indorse would he not
■inkat it ? Would he evor have indorsed it ?

Therefore, this indorsement is a strong evidenes
against him. The use made of this note, thui
forged and indorsed, was this : it being in th«
hands of Mr. Hales, Mr. Hales wanting a sum
of money applied to one Mr. Thrup, dckiring
him to lend nim bis note of 400/. Upon his
doing tliis with difficulty, Mr. Hales deposited
this note as a security tor his money, and here*
upon this note continued in the bands of Mr.
Thnip. Gentlemen, upon the discovery that
was made of another forgery, whereupon Mr.
Hales was apprehended, there was a suspicion :
hereupon Mr. Edwards, being informed that
this note was in the hands of Mr. Thrup, en-
quired of him about it. The thing upon this
appeared, and Mr.' Kinnersley thereupon was
apprehended and carried before sir Richard
Hopkins. At first he seemed willing to make
ft discovery : afterward he went back, and de-
nied ^I thmk) what he seemed before to have
owned: that will be proved to you. I think
that this will appear plainly to have been ft for^
gery, and to have been done by Mr. Hales and
Mr. Kinnersley.

Serj. Whitaker, My lord, we will go- on in
the same method as before, by calling two or
three witnesses.

Thomas Maddox and Anne Clarke were
called, sworn, and deposed as before. — As ftlss
Mr. Booth. Vide the preceding Cases.

Mr. Charlton Thrup sworn.

Att, Gen, Look, Sir, on that note, and ttH
us when you first saw it before.

Thrup. On May the 22nd.

Att, Gen, Who brought it to you?

Thrup, Mr. Hales.

Att, Gen. What did he say to you f

Thrup. He brought it to me, and desired
me that 1 would give him on it three notes of
500/. I refused him at first, alleging that it
wns not for my credit. At length 1 put into his
hand a pnunissory note for 400^ payable
within six months.

Att. Gen, Look on that note and see whether
it now is in the same case that it then was.
V/ns the indorsement then upon it ?

Thrup. 1 cannot say : for 1 took no notice of
the indorsement till I delivered it to Mr. Booth
at the request of Mr. Edwards.

Alt. Gt'H. fn whose custody was it till you
delivereil it to Mr. Booth ?

Thrup. In mine. Sir.

Aff. Gin. Did yuu make any alteration in
it.** — Thrvp. No, Sir.

Att. Gen, And \^hen you gave it to Mr.
Booth y(»u mirided the indorsement, did you
not? — Thrup. Yes, Sir.

Att. Gtn. How came you not to mind it
b**fore? What security was Mr. Edwards's
note if it had uot been uidorseil ? .

Thrup. I had such an opinion of Mr. Ha^es
that 1 suspected uoiliiu:^, and therefore (rave
him the note ; I did not think he would have
been guilty 'tf so vile an action.

Att. Gtn. \\\\v\\ wui it that you delivered
this note to Mr. B'joih ^

fvr a Mudcmcamr.

ka«a(benlliat were mule, llmtthe

M wtiuea nith n secretary e, hut ibe e

'•■^ witicti plainly mpri* 1u answer lo

>ad, anJ aliaw that iLal is

H(, Tfenot Bird tvato,
iluCtn. Sir. wbose lianii i> lliaC?
to^lir. Kinaenley. »ir, owncil that to Le

JcAm. W«i it (hpirril by y<ia In Mr.
fapiliy at tbal lime wbcD he on ned il i"
■aw, f ci. Sir.

laarttrf. And did I own it. Sr ?

Il 6m. Why, you owned il in court.

, I b*^ your pardon, Sir ; t did
d ll.aL

(i>ic thai unte Id the Jury lu
I wilb Uie oUiVr uote tkat it now

J, Witlnktr. Blr. Uneoln. those rece>|ili
•«diyM pnHlured, <lld Mr. Kinnrraley ac-
lalhr KM* llinn .'
Iimh. f MW him write tlietn all.
tmiWkHaktr. Sbrwtliem lo the jury.
Ii^« Bityaeldi. Oenltumen ol'lb« jury, in
tami yaw will Sad anine receipia wrote- by
Mt. liwmity, which Mr. Lincoln sHcars
nhlanrf; tW he luw him write then) all.
Jti. Otm. TIm tiCKt wiloess that we will

iitMlui|i«ariTi([norThoinas Brooks, who

WMttMlM,

Hir Rjdtard Uopkutt ttvoTti.
M. Gtn. 8ir lliohard, we muat trouble

Cia p>e an account upon nhal accounl
KaMialcy wta brunglit before you, and

lb a- Jln-Inoi. Itc waabrnnghl before mc
«^in...,i.,i,., iiu« of l.^iOOf. and tills note.
V- lien he WIS before yon, was
.- ular nenlioii made of this nole

'II. It WM giren to me to
\: \Mvn\ty about il.
- f Ridtard, can you recdieci
lUe note r
" I M. I made nn mark upon it:

t IwOeve ibat lbi> was"
i Otn. Wat it abewed
f

L B^kiM. Tliii

" latKise Sir. Kinoerslpy oiioo. I

, ifit, and il seeninl lu me to be a

Bafbrv I could aay any lliinj^ lo Mr.

■ ■ leMilford there.

what I

' Hold, 8ir(«iid be),

■or hand.' I titnuglit

> |tinice ol peace. I

1 . 1* this your hand

1 I the niher Tiof in

I'Telbre lo reoolkct

iliat ibry «wi\ied

A. D. 1729.

Mr. Strange. 1 Ibink lie Offoed the one In be
Ilia hanil-wrilin^, and tbe olher not. I aik.
Whether ihat wliieb he did own, Has owned
before that Mr. Hitford tntemipled him, or
after f

mr R. Jlopkint. It waa before. Upon tlial
Mr. Mitfonl interrupted him.

Serj. Wkitaker. Upon the quesltnn, when
enquiry wa» made whether he had bad any
dcaliii^B will) Mr. Ednarils, what did be aay T

Sir R. Hvpkini. Both Mr. Edwarda and 1
asked him, whether he erer had had any dcal-
ioffB nilh Mr. EdwiinU? To which lie re-
plied No, be nerer had hail any, nor erer toth«
best of bia knowledge had seen him before. 1
llirn asked him bow he came l« draw ibat
n«te payable to Mr. Edwarda, when there
neitr liad been any dealings between him and
Mr. EdivnntH f He answered, That be did it
at the re<)ii(-Kl of Mr. Halea, to whom be wa*.
indebted in that aum, and more.

Judge tUynoliii. The lirat question I sup-
pose was (i^iierul, whether there had been any
dealings between lliena i* Aflerwaida, when Ihe
noles iveie tliewn liim, he owned ibe one,
and denied the other. Was it not ao f

Sir R. Ihpkmt. Yes, my lord.

Alt. Gctt. The noxt wilBcas that we shall
call is Thomas Bab, to shew lliai there was a

Thomns Bai swdid. and deposed as before.

KinneriU<,. Sir. di.) ire ever call for pen,
ink and paprr ? — iiab. No, Sir, ncter.
Mr. Brooki aworn, depoaed an befora.

Kinnerilfy. There could not be much dnn*
at night without a candle-

Broah. No, Sir ; but you had been there a
considerable time belbre.

Mr. Wright Bwom.

Serj. WIdiiiker. Were you present, Sir, at
tile eiiRiiuatian of Mr. Kinnersley before air
Richard Hopkins?— ll'rifAt. Yea.Sir.

Serj. Wh'lakir. When Mr. Edwards asked
him, whelber there had been any dealings be-
tween them, what did he rc|ily T

Wright. He replied, that Uiere nerer had
been any dealing between them, and that h«
nerer bod WFn hiiu till that time.

Serj. Wfiilaker. Did you obaeive any inter-
ruplion?

Wright. Mr. Kionertley was aayioi;, I will
tell you all if yon will give me trate. Hf.
Milfard laid his hand opon him and said, Hold
your lonffue, be careful what vou say.

Serj. WAilakfr. I ask whellier be'bad there
related any thing aa lo the note now Id i)Ueninii
before the Interruption ?

Wr^ighl. He had declared that that nnta

Kintitritey. I beg leave In speak, my lord.
Both sir Rii-hard Ifopkins ami Ihatgentlemaa
bnte made a mialnke. Mr. Kdwnrd* asked
me. How olt have von viaited Mr. Hat««i»

875]

S GEORGE 11. Trial of Wm. Hates and T. KinnenUyf [871

New|(ftte ? Upon ibis it was ihat he said. Hold
your pence.

Serj. Wkitaker. Wbat was the question that
was asked Mr. Rionersley, when you say that
Mr. Miifbrd interposed ? ^

Wright, I cannot say what was the ques-
tion that was asked immediately before.

8erj. Whilaker, But you say, that it was
af\er that Ive had denied this note ?

Wright. Yes,8ir.

KinatTM/ey. J would only ask, Sir, whether sir
Richard Hopkins disired me to hold my tongue
as well as Mr..MiU'ord?

Judge Rejfnoldi. Did he hid Mr. Kinnersley
make no discovery f — Wright, No, my lord.

Kinnerglejjf. No, my lord: But he hade me
take the gentleman's advice. 1 appeal to sir
Richard.

Sir Richard Hopkitu, The gentleman hath
appealed to me. I take it that the question is,
Whether I advised him to take the gentleman's
advice P It would be very strange that I should
reprove Mr. Mitford for misbehaviour, and
vet should at the same time advise you to take
nis advice.

Wright, Sir Richard asked Mr. Bird, whe-
ther Mr. Kinnersley owned that he knew of the
note being indorsed that was in his hands ?
He said that he did. Then he was asked when
and how he knew this ? This was before Mr.
Mitford interposed.

Judge Reynolds. You have appealed to sir
Richard Hopkins, that he advised you to take
the gentleman's advice. Sir Richard denies
this.

Kinnersley, But he cannot deny that he
said, Take your friend's advice«

Mr. John March sworn.

Serj. Whitaker. Were you present, Sir, at the
•xaminatioii of Mr. Kinnersley before sir
Richard Hopkins ? — March. Yes, Sir.

Serj. Whilaker, Pray, will you give us an
account of all that past then* at*^that time.

March. My lord, I was nttending upon sir
Richard Hopkins as his clerk, when Mr. Kin-
nersley was broufifht betoie him with relalion
to these notes. \Vlien th«) tixst nou? was pro-
duce^l, he was a^iked, whether that note was his
hand- writing or mil ? To n hich he answered,
That it was. When that was gone ilii*ough,
the second note was produced, being a pro-
missory note made in the niiinc of i^fr. Ed-
wards payable to Mr. Kirinerslt-v. When that
note in the name of Mr. Kdwanis was produced.
we perceived on the back nf it the naun* of
Mr. Kinneniley wrote. Mr. Kinnersley having
denied this note, sir Richard, upon comparing
the name on the liack of tnis note, with the
Other note which he bad owned to be his own
hand-writii?!^, said to him, *^ 1 would have you,
Wr, consider very well whether you did not
write that too: tor it is Tery like that wliich
jrou have owned." Upon that Mr. Alittbrd
interposed.

Heru Wkitmktr. What was it thai Mr. Mit-
fiinlaMiayf

March. Mr. Mitford apoD that said, <• Hr.
Kinnersley, 1 woubl not hare you anawrr that
question ;" or to that purpose.

Att. Gen, Did sir Richard Hopkins tdfin
him to take his friend's advice ?

March. No, Sir.

Alt, Gen. Did he reprove Blir. Mitlord fit
interjposing ?

March. Yes, Sir. He desired him to h
quiet ; and told him that he would atk whil»
ever questions were desired, but desired thatli
would not interrupt. '

Att. Gen. Was his denying of the Dtli !•>
fore or after the interruption ?

March. He had first intermpted during lit
examination on the Grst note, and he nfteriiMl
interposed during that on the second note.

Alt. Gen. Well. But I ask you u toAi
second interruption, whether it was bcfim •
after his denying his hand ?

March. It was after.

Serj. Eyre. You were saj^ing, Sh*, tbttnr
Richard bttde him recollect himself, and d**
aider well whether this was not his hand tm^
for that it was very like that note which IM
had owned to be his own hand-writing. Had wtt
Mr. Kinnersley before that said, that be M
not sign that note ? — March. Yes, Sir.

Att, Gm. We rest it here, my lovi, irf
leave the considemtion hereof to the jury.

Mr. Mather. 1 would ask, wbcihcr Mr.
Mitford's advice was not that he shoeUl Itf
speak too fast ?

March. No, Sir; it was that he shonii at
answer to that qiicstiun.

Kinnersley. They contradict one nnote)
and Mr. Bird will swear ahy thing.

3 xk^QG Reynolds. You may prove that ts^
his character if you can ; but without that yli
oun:ht not to aver it.

Bird. It is well known, my lord, wbat Of
character is. 1 have persons of good OfsA
that have known me ihLse26 years: I but
never fu hi tied my word.

Mr. L(u'y, My lord, 1 have nothing msteriiL
in ujy instructions ; and therefore 1 shall not
trouble your lordship.

^i:\'y'Eyre. My lord, 1 am counsel for Mr.
Kinnfrstey. I admit that they have profsi
tiiat there wos an intimacy between them. It
is detrimental to niy client that there was rack
an actjuaintance when the one was parishioMr
formerly to the other, and that this acquaial^
ancc was ki^pt up to the last : but it doth Ml
follow that they arc to be coniiiilered as onsi
Jf Mr. Hales be never so gniUy, it doth nSl
appear that Mr. Kinnersley is guilty. AsM
this indictment, the charge is forginfi^ a note h
the name of Mr. Kd wards, and indorsing thi
same. It is admitted that Mr. Kinnersley kafi
no acquaiiitance with Mr. Edwards : but ei
the otlier hand it is pretty pUin, by Ike Cfi^
dence that hath been given, that there
acquaintance between Mr. Edwards and
Hales. They were near neighbonrs:
Edwards hath indulged him with innknfti
several years. Mr.Uakiisaiiiaaimisr

Jbr a Misdemeanor.

Rr BUoy jnn, bath bad a commia-
aakniptcj awarded ai^inst him : It ia
ml lor attcb a perann to deal rather in
pmoD'a name than in hia own ; if
there be an intimacy between Mr.
i Mr. Edwards, Mr. Hates should ap-
r. JSdwarda, and he upon his request
ife bim such a note, I do not wonder
fentleaian of character should indorse
ile ainftied b^ a person of such figure.
^ MCIB very unnatural, that afler their
■iDtance a note pa3'able to Mr. Kin-
w trust for Mr. Hales should be in-
' Mr. Kinnersley : This may be sup-
ecate, if actually he did indorse the
do not see why he may not be sup-
easily imposed upon as the other gen -
iz. Mr. Thrup. Ji is not so plain a
(that Mr. Thrup, who is a gentleman
My could discern it. Why must we
hen that Mr. Kinnersley roust dii-
If then Mr. Hales is iruilty of the
it doth not follow that Mr. Kinnersley
W. As to the other point, it is no
bat there should be the name of Mr.
ay oo the back of the note : Any that
rge a note will not scruple to forge
MBCOt. It is as likely as possible, and
that would forge a note in Mr. £d-
mme for such a sum, may be as easi-
aed to forge an indorsen^nt on this
low have tliey proved that it was in-
f Mr. Kinnersley ? Two or three gen*
ave been produced as witnesses, that
n his hand several times, and from
itade of the letters they believe it to be
: But there is such evidence to be
f given of one man's writing like ano-
It a similitude of hands is not to be
I at. It is not to be wondered at that
rould be guilty of forginjif the whole
aid indorse it : VVhtMher there is any
tin the hand between the writin(;s that
Q produced and this note and indorse-
jiit be left to the jury.
lieynoldf. Have vou any witnesses?
rs/ry. I beg a word, my lurd.
Reynolds, Not till we have heard the
at the counsel say.

lather. I take notice, my lord, that
tth been a variance among the wit-
I to what past at bis examination he-
Richard Hopkins. The only caution
I given him was, that he should not be
ID bia answers, as your lordship hath
e) thought him very rash in his con-
r. We shall only call a witness as to

Rev. Mr. John Haya sworn.
Imtker, Mr. Hayes, please to give my
the jury an account what passed as to
of 1,6M)/.

• When this note was produced before
ifd Hopfcios, and shewe<l to Mr. Kin-
spannewing him the name on the
the Mtc^ he abaolutely denied it to be

A.D. 1729,

[278

Mr. Mather, Did you hear Mr. Mltford in-
terrupt ?

Hayes, I remember that there was a dispute
between sir Richard Hopkins and Mr. Miifurd.
There were minutes taken of Mr. Bird*s exa-
mination : u|>on the reading these minutes, Mr.
Mitford apprehended them not to be riu^htly
taken accordiusr to the evidence that was given.
Upon this Mr. Bird was re-examined, and then
there was another question proposed concern-
ing Mr. Kinnersley's going to Newgate to
visit Mr. Hales. 'J^hen Mr. Mitford again in-
terposed.

Mr. Mather, Was that the reason of the
interruption ?

Hayet. Yes, Sir, I believe it was.

Mr. Mather, Was there some other part io
which he had also interposed ?

Hayes, Yea, Sir.

Mr. Ward sworn.

Mr. Mather. Sir, were yon present at the
examination of Mr. Kinneraley before sir Rich-
ard Hopkins? — Ward, Yes, Sir.

Mr. Mather, Give us an account of the in-
terruption by Mr. Mitford.

Ward, Mr. Kinnersley was examined as to
the note of 1,260/. : Mr. Kinnersley being
examined aa to that, there happenc^d some
words t9 pass between bim and Mr. Bird:
after some hesitation and dispute, he having
acknowledged that note, it was put down in the
minutes. After that he was examined as to
this note of 1,650/. : Upon his denying that it .
was his hand, Mr. Kinnersley was askeii some
question by sir Richard Hopkins concerning
somewhat that he had formerly said ; where
upon he desired to be exantined in the c(mrt
of aldermen. Mr. Mittord hereupon desired
him not to desire this.

Mr. Mather, My lord, the reason that we
bring this witness is to shew, that he had con-
fessed all that he could at that time, and there
was no resison therefore for Mr. Mitford to inter-
pose for the preventing Mr. Kiunersley^s mak-
ing a discovery.

Kinnersley, My lord, when tliis note was
shelved me before sir Richard H(»pkins, it was
the first time tliat I ever saw it : I therefore
denied it to be my hand ; hut l»v looking upon
it more closely, 1 own ihut it is like my hrnd.
Thoui^h nonv can oblige me to s:iy any thing,
I would he ccntent to he examined ; and thf>re-
fore have, though not regarded, stdemnly
averred ihat 1 was not privy to his getting of
that note or money. As to the ottier note, 1
owed him at that time the 1,260/. ; I gave him
that note for it, and would not uilh tha* 8(deiri«
nity say that it is not mine. He hath got it
sonte other way indorsed: Jiut as to ttiis note
it is not mv hand. Had !\Ir. Hales briMit;ht
Mr. £dwards*H n(»te to me, and desirinl me to
indorse it; though 1 own that J tinnk that it
hath the marks of forgery, yet if Mr. Thrup
and others were imposed upon, why mi«r|it not
1 ? Why should I suspiict him more than
others f I own that I bad a great contidei;c« inr

S79]

5 GEORGE II. Trial of Wm. Hales and T. Kinnersley,

liim. SuppouD^ tbis, will yon ooDdemn me
for an unjust thing ? I take God to witneM,
that I nefer set my hand to that note, nor nefer
took any money. I beg pardon, I will say one
word more : the ipentleman hath taken notice
rightly that I have spoken rashly ; it if an op-
pression, and the wise man saith, that " Op-
pression will make a wise man mad," which b
worse than rash.

Att, Gen, My lord, be bath intimated that
tliis is an unjust and oppressive prosecution : I
submit it. Proper eTidenoe hath been given,
and be hath replied to it by his counsel. The
counsel suppose, that it' the whole note was Mr.
Hales's hand-writinfift it was Tery likely that
lie would not scrupfe the indorsement. Mr.
Kinnersley himself seems to adofit, that for
aught he knows he might have indorsed snch
a note; but the turn that he gives it is this:
If such a note was wrote in the name of Mr.
Edwards payable to him, he might indorse it,
being brought by a creditable and nonest person.
If a note was made payable to him by a gentle-
roan of such figure and character, and so
brought to him, be thinks that he might indorse
it, and would ao have done : But it is impos-
aible that it could be fairly done ; there must be
something fraudulent in it. The evidence on
the side of the king shews, that there must
have been a conspiracy between these two per-
ions to defraud several persons : As the other
note was, without any colour for it, made pay-
able to Mr. Edwards, his name being indorsed
upon it, he beibg a person of ability to credit
the note ; So this second, on the other hand,
without any foundation also, because no colour
of dealings between them, is made in the name
of Mr. Edwards, payable to Mr. Kinnersley,
and Mr. Kinnei-slev s name indorsed. Why
sbuuld Mr. KiunerBley's name be put to it, but
only to give a currency to this note P When a
note is made payabli^ to any person, it cannot
be negociated by any other without his hand
being put to it : His hand therefore was not so
much to give a credit to the note, he being a
man of no substance, as to give a currency to
the note, it being in hb name. When that
appears to you, it is (I think) sufficient to con-
«moe yourjud(;nients tliat Mr. Kinnersley is a

gartncr in this forgery, otherwise be would not
ave indorsed this note in these circnmstances.
Serj. Whitakcr. My lunls, it is very extra-
ordinary for a person to pretend such a note
belonging to him, that never had had any deal-
ings with Mr. Eiiwards. What proof hath he
given that he did not indorse it P What colour
IS there to say that this is a rash prosecution ?
Kinnersley, BIy lord, 1 beg a word. I say
not that it is rash, as to the whole prosecution :
but I never was privy to any wickedness in
this note, nor in anv other: If I had, I would
never have appeare<f here in my ^wn. My cha-
racter ought not to exempt me if 1 am guilty ;
1 ought to abstain from all appearance oif evil :
Wlm I have forfeited that character, 1 desire
to live no longer among mankind. I asked
Mr. Uaki M what acoaimt I wu mmtfntfmA

whether there were any note of mine
said. Yes ; there was a note of 1,650/. p^
by Mr. Edwards. Is it (said 1) a true
Is it wrote by Mr. Edwards P He aha
head and said. Just as true as the oth
asked him whether it was indorsed P To
he replied, Yes< Had I known, my lor
the note was indorsed, I need not nave
Mr. Hales. He b ready to do me j
though he must thereby take it upon hi
Your lordship knows that I have no s^l
racter in Suffolk.

Judge Reynoldi. We shall not neec
Kinnersley, to go to Suffolk for youi
racter.*

Judge Reynolds. Gentlemen of the
William Hales, late of London, goldsrail
Thomas Kinnersley, clerk, atami indict
forging a note under the hand of Mr. £
Edwards, for 1,650/. payable within
months to Thomas Kinnersley, or ordei
the date thereof, for value received : At
other part of the indictment charge th
with publishing the same. To this indn
they have pletuied NotGnilty: The qi
you are now to determine. Gentleiiie
foundation of this which bath been insii
by the counsel on the aide of the prose
is, tliat these gentlemen, or rather the
them, Mr. Hales, having an acquaintanc
Mr. Edwards, and being indulged by hi
liberty of applying to him for franks, the
made a wrong use of this, and by con«

* In Trinity term 5 Geo. there was
fonnation against this Mr. Kinnersley a
Moore, as being evil-disposed persons, ii
to extort money from my lord Sunder laj
conspire together to charge my lord w:
deavouringto commit sodomy with th
Moore; and that in execution of tbi
spiracy, they did, in the presence and h
of several persons, falsely and malicioui
cuse my lord, that he '* conatus fnit r\
neream habere*' with the defendant Moa
so to commit sodomy. Kinnersley oi
peared, aud pleads to iasue, and is found |
and several exceptions were taken in ai
iudgment, see Strangers Reports, vol. 1,
but the Court over- ruled them all. Whe
judgment was given for the king, and
wards the Court proceeded to sentenc
told the defendant Kinnersley, nothing !
being a clergyman protected him from
poral punishment ; they fined him 50*
year's imprisonment, and to God surei
his good behaviour for seven years. In
term, 5 Geo. Moore Wax convicted an
tenced to stand in the pillory, suffer a
imprisonment, and to nnd sureties lor
years. And this term, Kinnersley, o
davits of his being indisposed, moved the
that lie might be admitted to the bene6t
rules. Sed per Curiam, we never do it tor
execution, which diflSera from the case of
SOD oommittad for hisb treason, who bav
bailed 00 account of iUoess. lb. I96.1bni

' a M'ademtanor.
« if ttiE \eatn tf ih» word ■ fTree' ioin
•In tlx^." uiil hy trtiliog aome flilier worJs,
tejr k>Tc DOW iDrmril il mlo a nrgociable note
fir lb* ntm «f l.USU/. jiiynble williiti six
■Mih* M Mr. KliuierKle;, or hin order; And
Aw Mr. KiBDcntkf , tn ^rs a circiiUtion tti
feaaic, and make il ntfgociable, baih, la cam '
tMBWB wtib Mr. U>Ifb, iDdaneil bis nsme-
M*. Uaar^* \» mpontitile lo any body lo
«tMi 4W wote » trinKferrtil oTtr. Genlle-
■■.IKMakraul ihlstoWtliecBSe, they tiave
fttiMbsrouml In «liew ihal Mr. Hale*, fat
mmi liBF, on Mfml preteoces, prorared a
■ahir *f aaptrscTiptiftiiB to be writleo for
taht l>r !llr. Edwania, who is a niember of
fHfaMst, and particularly (ome auppnciip-
tfiMiniMcli circuroslaucea as were moat ac-
■^iMadaWd lo aer*e a dmign of ihia oature.
iii M tU* end they h»i>e produced Thomas
■iMr, ■ Mrrtaul of Mr. Edwards's. He
■ilh, Ihu Ur. lUIes, lirina near Mr. Ed-
■«4a in Dulcc-sireei, in WeKtminater, haili
mtntA than applied lo him for frank Fo?er8 to
«ari MWK into the cuuntry: thai Mr. Ed-
««<i« kaitt PITCH iiim seTeial for thai purpose,
htf ft n Si ally wrote the whole sujiertcriptioii
Vi^BiC iHirmaiit tu the directions that were
piM him: that In July Um there came a
■MMlsf fVaak*. SIX of them, wlimruftive have
M fnduced, lo be franbed, but without any
Acoan In irboBi to vuperacribe them. Mr.
IIbbi4« *«i dein«d lo frank tbem wilhont
mn MtpKncrijitiori : Mr. Edwards refuseil lo
nifc iMoi. Hiiinis directed to wbum lo aupn-
■ntellMm: Thu« Iheaecoters, upon thai,
WMaal dooeal ibal lime. But ihea lo shew
Ml «lwl pMt aflerwards llpnn occnslnu of
iHhbitks >cul la he frinked, Anoe Clarke,
a Mrtanl alau lu Mr. Edwards was callad.
ikMh, Ihal sometime aAerlbii, Mr. Hales's
^iMH cam* a^in ov«r lu Mr. Edwards's
blow, and told her that Mr. EdiranU having
i<— d to frank his master'^ cuiers williout
Wfamptiona, \\* had bronghl from his master
■ faftrwf ihtectiuns what aupvncriplions he
4Mr«d Mr. Bilwards to ]iut lo tbem. Tlial
■tpst a( dirrctions hath been produced, and
Llh hern ■*>«!■ hy Mr. tloolh to be Mr.
tLt^mma lnDd-wriiiii|r. Tbey trcre very
Ann dvidfOna .

T«o In Mr. Lt'Tell, of HuDtiaston.

TwawJohu I'mli, eMi.At Bristol.

T»a Iwiftffeti Mitford, owj, I^eler,
iad Ibey miubl inlvr, lltit as ihese superscrin-
tma wrra icry abort, and W won' ) not tsRC
^■ucli rfMim, a Tactnl upace would liavcheen
Maad-JEDI tn trritc any tiling of this nniure,
1\M ■■ ri>« maun of Ibeir pradneJne an accounl
'*'* ~ icrioii, which dolh nut immtidiately

uae.bntnnlv at they areinclinahfe
tt (ome such IVank may hsTebcm
Wfc «*e at lo anrh «n end as tbrsr seem lo
iMahnrndengnnl for. And thi-n,loBhewynu
fciaa which tlivy m^de herrof, tbc note [i

"Iprflmiaelu pay in Mr. Thomas Kiiuers.
ley, or his order, withio six monihg at\er data,
ibe sum of siiteeo hundred and fifty pounda
lor ibe tbIub recalled,

" Marck'-iO, 17S8. Sahdel EDWaaw."
and on Ibe bark il is indot«ed with the oanie,
Thomas Kinnersley. Gentlemen, they have
insisted upon it ihal Ihe neie itsvlf carries the
evident marks of forgery upon il. They say
ihnt this it so plainly derived from Ibe I'lanK
cover of a letter, thai Ibe word ' (Tree' Is not
wholly covered, but thul still some of il ap-
pean ; thai llie stile is oniisDEd ' for llie ralue
received.' ' The' in a lar^je hand, and then af-
terwards ■ value received,' the u of a round
hand, wliereas all Ihe other ee me of a ijuile
diHerent figure, in a secretary band. Olher
obsertaliont they have also made, which you,
thsi have rieweo the note, can easily jud^e of.

for that purpnie they have produced Mr. Charl-
ton Tbrup. He sailli, that on May 92d ta>tthit
defendant, Mr. Hates, brciii{;hl this note to him,
deiirio^ bim to tend him three boul. notes npoit
il; thai he, not caring; tn have bis credit en-
gaged lo lucb a decree, refused to do il; bnt
upon bis imporlUDity, did at last consent to
give bim a promissory note of 400/. upon ihe
security of Ibis note, whieh Mr. Hales there-
upon then de|>osiled in bit hands ; thnt il waa
a note for 1,850/. aipied by Mi. Edxards,
payable to Kinnersley, and indorsed. Ha
Bsith, indt'ed, that be did not Iticn observe the
indortemeaL Seeing this noie signed with
Mr. Edwards's hand, and knowing him to be a
mtn of ffr«ai sufficiency, he was not to atien-
live lo tlte other. He sailh, that be kept lliia
note in his band till alter that Mr. Hales waa
taken up, aitd then he delivered it hy Iha dire«>
lion of Mr. Edwards loMr. Boolh; ihalbefora
It vent out of bis hands, he observed the in-
dorsement. Hesweui'salgo, thalil received no
alteration in the mtermedl ale space between ita
coming into his hands and its going out : it
most be therefore iudorsed before. He sailb,
that at to his own note, he knnweth not what is
cume of it, but believes I but il is in the hands of
Mr. Maddoi, at the Bank. To shew that this
is a forircd nole they bafe called Mr. Spicer,
who halh been above twenty years conoerned
for Mr. Edwards ; ahout ten ur twelve as his
clerk. He sailb Ihat the name it Mr. Ed-
wards's, and that the ff is also liis ; that il ia
bis roaster's conttani custom, when be franha
a letter, to write Ibe word ' fTree.'and ual * frank'
over his name, in ihe manner wherein ihis
orig:inally stood, and tbul always with a ff. He
aaitb, Ihat he likewise thinks that the r is hit
master'* hand-writing, hut that the o is since
crowdeil in bclween Ihose lettert. He thinks
that there are plain footstrtis, which ahew Ihat
the first of ibe Iwo ce wiilch joined lo form
the woid' ITree,' hath been made use of lofi>rui
the hrvt ^rl of the heuit of lliey, and the other
stroke bein^dratrD between tlAf and the other

983]

S GEORGE II. Trial of Wm. Hales and T* KinnerHey^ [281

tf j it forms the word^'^ but then it doth not stand
at usual ofer the y. And then be observes,
that he the rather believes this to be his mas-
ter's f, for that he always writes such an baud,
and all the rest here are in quite another hand.
And he saith, that he believes, that beioff ac-
quainted with his master's aflfairs, he should
have known of it, if that there had been any
such transaction of his master's, and that this
note too is of a quite different form from any
that his master ever delivered, and in a manner
therein his master doth not usually transact
his affairs : for that, as he is a man of fi^reat
credit, he never knew him give a note for time ;
and in the next place he is so very cautious that
he never knew him give a note but that he wrote
the whole body of it with his own hand, whereas
the body of this note is not his own hand, and
therefore contrary to the method that he usually
observes. Thus far the evidence is product,
in order to charge Mr. Hales, one of the de-
fendants : but tlien in order to prove Mr. Kin-
nersley a partner in this transaction, they have
afterwards observed upon the indorsement that
this note beinnjr made payable to Mr. Kinuersle}',
it could be of no use tilliudorsed by him to ^ive
it a curreiicv. They have shewed the hand
upon the hack, and in order to prove his name
wrote there to be his hand, as in cases of this
nature noihin<^ but an observation of the simili-
tude of hands can be expected, they have called
on those that have seen his hand, to give their
o|)inion thereof. The first man expresseth
himself with a great deal of caution, seeming to
apprehend ut hrst that he was called to swear

{)ositIvely that it was his liand : he saith, that
le hath seen him write several times, particu-
larly at least three or four times the last year ;
that tills is so like that he verily Mieves this to
be hi;! hand, and cannot alter Lis judgment as
ixi it. To the same purpose they have also
produced another person, one Mr. John Lin-
coln: he saith, that he hath seen him urite
several times, and put his name to receipts in a
book : and that he cannot believe but that this
is his hand- writing. Some of you having de-
sired to see and compare with this note the other
note which was formerly proved, it hath been
again proved ; and as the person aforemention-
ed jiroduced several receipts which he saw him
write, you have had them also to look upon :
which how far it will help you in forming a
judgment you are to judge. Further, they
say, that Mr. Kinnersley was a stranger to, and
had no transactions with Mr. Edwards. They
have called several persons that were present at
the examination of Mr. Kinnersley before sir
Richard Hopkins, as well as sir Richard hini-
lelf, who all say that Mr. Kinnersley himself
owned this, and wasgoin^ to say something
further, bad he not l)een mterrupted by Mr.
Mitford. 8ir Richard Hopkins hath been pro-
duced. He saith, that in the latter end of Sep-
tember last, Mr. Kinnersley was brought before
him, charge<i with two notes, tiz. one of 1,260/.
and this note of 1,650/. ; that they entered into
the eTtminatioQ of the fint notei which he

I owned very frankly to be his note, written with
his own hand ; that they then entered upoo the
other note, which he verily believes to be tb#
same that bath been here produced ; that BIr.
Kinnersley having denied this indoraemeDt to
be his hand, he desired him to recollect whether
this indorsement was not his hand too, for that
he observed a very great likeness of the hand
between that and the note which he had owned
to be his hand- writing, and delivered the note ID
the defendant Kinnersley to look u|Km ; that
upon this Mr. Mitford came up to him, and
said, ' Answer nothing : this is not your band-
writing.' He saith, that upon thii Mr.
Kinnersley said the same thing, that this ww
not his hand- writing. He saith, tiiat be asM
him, w hether he had had any dealings with
Mr. Edwards P That he replied that he had not,
and that till this time he was an utter stranfff
to his person. He saith, that Mr. Mitford and
he baa some high words upon this occasn^
he reproving him for interposing when he ap»
prehended that a further discovery might have
been made. They next endeavour to shevi
that there was a correspondence carried on in
a private manner between the two defendaniL
In order to shew this, they have pitKlueed
several persons at whose housesihey have mrt:
one of them is Thomas Bab ; he saith that he
keeps Peel's coffee • house, in Fle«*t-street ; thai
the latter end of Inst summer Mr. Ualee very
frequently came thither, and would sometimes
be there for an hour or two ; that he oAsn
asked whether the minister l\ad been thereto
ask for him, not asking fur Mr. Kinnersley by
name, they knowing whom he meant, haviDg
often seen them there together ; that when Mr.
Kinnersley came in, they useil to retire into a
private room, and stay there together for some
time; that one time Mr. Hales observed Mr.
Kinnersley t^oing down Fleet-street, went out
and went after him ; that sometimes they went
away together, sometimes asunder ; some-
times one went out at the one door into Fleet-
street, and the other at the other into the |>as*
sage to Fetter- lane. He saith, that this their
resort to his house was till about a mouth be-
fore that Mr. Hales was taken up, and was
then discontinued. Mr. Kinnersley asking
him, whether ihey ever called for pen, ink and
paper .^ To this he rejdiei, No. Of the same
nature is the evidence oC Thomas Brooks ; be
saith, that he keeps a coffee-house at Downingn
street, in Westminster; that Mr. Kinnersley
used to come to his house, send for a porter,
and give him a note to Mr. Hales, who there-
upon hath come thither to him, and they have
gone together by themselves to the t'urtlier end
of the room ; that this they did several times,
and stayed together sometimes several houn.
He saith, that once particularly they staid
there till it was so dark that he usked his ser-
vant why he had not carrieil the gentlemen •
candle; who said that he had carried them one,
but they refused it. Gentlemen, they havn
then again had resort to the examinatk>n before
sir Richard Hopkins: Ihey have, as tothii^.

Jit a Misdemeanor.

A. D. 1729.

[286

caned Mr. Wrigflit. He saith, that he was
pfcacnt mt that eiamination; and that Mr.
KkuMralcy, beiajg^ pressed to answer several
^acstioiis pat to him, was in some emotion, and
■■ii, I will tell you all, give me leave ; seeming^
Mms to take time to digest his thoughts :
ihiitlicnoiie Mr. Blitfbrd came up to him, and
Mttan bold his tongue, or he would do him-
ariff SMe miachief, or words to that effect.
Bt Mag examined as to some particulars
te Mr. Kinneraley affirmed to have passed
fttfamitr Richard Hopkins and Mr. Mitford,
■tflkalnr Richard advised him to take his
fiind^ advice, he denietb this, as doth also sir
lakwd Hepkins himself, to whom Mr. Kin-
BCfriej hereupon appealed. He saith, that he
tUakstkat thn interruption waa afVer that hav-
iagowMd the other note to be his hand -writing,
ka kad deaie<l this indorsement to be his,
air Richard thought it before, and de-
to pvevent his answering him on that
Tmt have also pNroduced Mr. March,
liiBr I&chard Hopkins's clerk: he gives
M oineb the same account. He saith, that
Mr. KiBMrslejf having owned the other note,
~ ~ ~ ~ this indorsement to be his hand, sir
serving the likeness of the hand, ad-
to recollect himself, and consider
vkctber that indorsement was not liTs
I ISO as well as the other note, for that the
bwete very like; that Mr. Mitford upon
■Herpoacd, and said, * 1 would have you
and not answer that question.' He
MB that air Richard advised Mr. Kinnersley
makehia friend'a advice ; but on the contrary
■ilh, that sir Richard was a little warm and
hfiikiufleil him for his iuterposiiiGf, as being
as iaferrupliun of justice. Tlii*} is the evidence
Ifcstteth been laid before you as to this note,
kaft lo prove the forgery uV this note, and to
Aew Ike nse that was made of it both by Mr.
Hales and Mr. Kinnersley, who is charged
with the indorsing this note in order to make it
carreai. They are called upon to make their
(Itfeoce: Mr. Hales stands mute, and saith
BOCLiDg. The facts bear>ery hard upon him,
kt being supposed to procure these franks : it
Uioicd him therefore to give some account
kav be came by this note. So as to that I ap-
prehend that there is no litfficulty, Mr. Hales
BiUag no defence. Bui the question is. How
fu Mr. Kinneraley is proved to be concerned ?
liis counsel have endeavoured to sol\en the
fvirfenee, or make it not applicable to Mr. Kin-
Doiley. They own that there was a fami-
liarity between him and 3Ir. Hales: but then
tktjr'aiy , that there was also a familiarity be-
tween Mr. Hales and Mr. Edwards : they say
teefore, that familiarity with Mr. Hales is not
anrimina] tbinzf. In itself it is not: but the
fSHAioa ia, whether a criiiiinal use hath Item
■ide of it ? They suppose it to be a forged iu-
IVBement; but say, that the same person that
fcvgfd the DOtemight alsoforge the indorsement :
■ad tbey aay, that suppokiog it to be Mr. Kin-
Mslaj^ hand- writing, it may be well supposed
^^"^^ "impowd upon. And they would

also have it believed, that this is an usual thing
for one person to indorse another's notes among
common acquaintance. But how were they
common acquaintance, when Mr. Kinnersley
hath acknowledgeil that he had never seen Mr.
Edwards in his life till afler tbisf They say^
that it may be the easier supposed that Mr.
Kinnersley did thus give credit to this as a true
note, and not take it to be a forgery, since Mr.
Thrup, who is a man in business, was imposed
u|M)n by it, and lent 400/. upon it. Tbey have
called al^o aome evidence, not directly to con*
trovert the fact, but to contradict some thii^
given in evidence, relating to the examination
taken before sir Richard Hopkins. To tliia
purpose they have called Mr. John-Hayes. He
saith, that whether this indoraemeiit was bia
writing was not the question proposed to Mr.
Kinnersley, when Mr. Mitford interposed, he
having before denied that ; but that there waa
another question, that waa then proposed to
him to answer ; whether and how often he had
been to visit Mr. Hales in Newgate P And he
saith, that as to that it was that Mr. Mitford
interposed, and advised him not to anawer to
that question. They have called also Mr.
Ward, who was present at the same time, and
gives you much the same account. He ap-
prehends that there was a dispute about the
minutes that were taken of what had passed,
and that Mr. Kinnersley was in a passion, and
desired to be examined in the court of aiders
meu ; and that then Mr. Mitford interposed,
and advised him not to desire this \ that the in-
terruption was upon that extravagant offer of
his, and that upon that possibly sir Richard
might advise hira to take his Irieud's advice,
that is, to be clear and not so rash in answer-
ing the Questions put to him. Mr. Kinnersley
himself hath laid Wore you what he thought
proper. The witnesses that were called (you
have doubtless observed) as to that examma-
tion, both of them say, that he had denied it
before the interposure. Mr. Kinnersley speaks
himself and seems to say, that he doth not
know but that it may be his hand, though how
it came to be obtained he cannot well tell. In-
deed it is an extraordinary thing how his name
should be obtained on the back of a note signed
by Mr. Edwards. Gentlemen, if any other
particulars, material for their defence, have
slipped me, you have heard them, and they
oii'jrht to have their weight. The question is,
Whether and how far he is a party in this
transactiou ? If he be a party, thoujjh he doth
but the one part, he is cquall v gudty : every
man that takes part of these things is equally
guilty of the whole, and stands undefended.*
The note then must be taken for a forged note,
and probably in the manner that they have
shewn. The thing in question is. How far
Mr. Kinnersley is concernc<l ? The name Kin-
nersley, you see, is upon it : if his name bail
not been upon it, the note had been of no avail ;
for there bavin;; been no transactions between

* Sou East^s PI, of the Cr. c. 19, § 59.

SS7J

3 GEORGE II.

Trial of WiUiamHaUSf

[888

them, lie could not have deminiled the monej.
Bat the maia bitsinem was to indorse it, that
other peraonf that knew not but there vaig\xX
have been such transactions between them,
might credit it, and lend money uiion it. Whe-
ther the proof that is given you that tliis is his
hand, couoUmI with his own apprehension that
it is very like his hand, will satisfy you of it,

2 on must judge. If ^ou judge that it is his
and, the next Question before you will be,
bow far it couM oe put to a note of Mr. Ed-
wards's? It is plain that there could be no
foundation for it : if then you think it satis*
fhctorily proved that bis hand was put on the
bac^ ot this paper by hira, knowing it to be a
note of such value, and there be no reason
given you for it, you must look on him as a
party ; but if you suppose it put to the back of
Ibe note without his privity, in that view of the
thing yoa must acquit him.

Jury called over.

Clerk. Are yon all agreed in your verdict F

Jury. Agreed.

Ckrk, Who shall speak for yoB ?

Jury, Our foreman.

Clerk, How say you? Is William Hales
Guilty of the misdemeanor wherewith he stanils
charged, in forging a note for 1,650/. tod in-
iloruug the same, and in publishing the same
as a true note and indorsement, knowing it to
ba so forged and counterfeited, or Not Guilty P

Foreman. Guilty.

Clerk. How say you, Is Tliomai Kinners-
ley, &c.

Fweman. Guilty.

Mr. Strange, My lord, we desire that Mr.
Kinnersley may be now committed.

Judge "Rtynoldi, Whence was he brougfal
hither P

Mr. Strange. From the Compter.

Judge Reynolds. Well, now that be ii co»
victed, he must l»e committed.

Kinnenley. Whither, my lord?

Judge R^^lds. To Newgate.

Kinnersley, But, my lord, there arc tm
writs against me which fix me to the Gomplv.

Judge Reynolds. They will follow yea
doubtless to Newgate.

Kinnersley. But, my lord, the order of Iba
lord ehiefjustice was, that I shoukl he oaa*
mitted to the Compter till discharged.

Judge Reynolds, Your being ordered Id
Newgate, is a discbarge from the Compter.

Kinnersley. I bless God that I go back ui-
nocent of the charge against me.

Judge Reynolds. Jf yon do in your om
apprehension, it is not so in the appeebenain
of the jury.

Kinnersley. My lord, I thought I bai
cleared that matter. If Mr. Hales bad broogbl
me that note to sign, I believe that I ahnlA
have signed it: hut I should not have done il^
if 1 had known that Mr. Edwards's nuDe wn
fraudulently obtained to it. May I oever sea
the faoe of Almighty God, if 1 was ever privTlt
any of Mr.Hales'sfoigerieB! IfyoarlMdnip
please to direct me to Newgate, I derirnll
may be immediately, for I am ill, bavug baa
here so long.

Judge Reynolds. It will be preaentlj, fti
the Court is going to aiyocirn.

477. The Trial of Wilmam Hales,* for frauduleatly forging and
counterfeiting a Writing, purporting to be a Promissory Note
of Samuel Echrards, esq. to Samuel Lee, for Four Thousand
Seven Hundred Pounds: 3 Glorgg: II. a. d. 1729.

The Jury called over aud sworn.

Clerk. 0Y£Z, Oyez. If ^y one can
inform, dec.

Imdictmbnt.

Gentlemenof the Jury, William Hales stands
indicted by the name ol William Hales, of Lon-
don, late goldsmith ; for that on the 1st day of
August, m the 8d year of bis majesty's reign,
be did fraudulently forge and counterfeit a
writing, purportinfjp to be a promissory note, in
these woiils followmg,

« March 30, 1788.
" Six months after date, 1 promise to pay to
Samuel Lee, or hb order, the sum of four thou-
aaod seten hundred pounds, for y« value re-
eeifed, Samubl Edwards."

* See Ibe prwedug CaaasL

and that he did knowingly and wittingly pobUab
the same as a true note, knowing the same to
be so forged and counterfeited.

9/lr. Strange. May it please your kwdabip,
and you gentlemen of the jury, this is an in-
dictment ag^nst Nr. William Hales, for forg-
ing a note in the name of Samuel Edwam,
esq. and publishing the same. It sets forth,
that on the iRt of August, in the 2d year of bin
majesty's reign, he forged a note in these H'Onta
following, &c.

And it further sets forth, that the defenihmt

Kublished the said forged note as a true note of
ir. Edwards's, knowiug the same to be forged
and couutcrfHted.

Sen. Whitaker. May it please your lord-
ship, 1 am counsel' in this cause for the king.
Gentlemen, this matter is of the same naturo
with some former indictments : I shall there-
fiwe take up but little of yoor line. It

8S9] Jor a Misdemeanor. A. D. 1729. [S90

pnrt, gratlanen, to ns, that this is the effect should rome upon yon for the affirminc^ of thii

nf ftinie firmnk ooTers, that Mr. Hales hath jiid<rineiit. Upon this sir Diby Lake was io-

frudalditly obtained of Mr. Edwards. 1 need diiced to be his sccurir v ; thus he came to haVe

Ml DOW acquaint you, that Mr. Edwards did this note delivered to him. Gentlemen, when

ht some time induliire Mr. Hales with frank we shew you, as we must, it bciii^ afresh case,

coTcn, which Mr. Ilalea pretended that they how he bad fVanks from Mr. Edwards, theme-

vere lioi^ed for aenilinf|r news into the coun- thofl wherein he hath made this use thereof,

trf . This note, jg^ntlemen, is even a i^rosser and itien that this note was thus delivered to

fn^i than the utlicrs can be Rup|K)sed to be. sir fiihy Lake ; and you have considered the

Bmeasam of 4,700/. which Mr. Edwards is several circumstances of the case, it will appear

soffHcd tu promise to pay within six months both that this is a for^^ed note, and hy whom it

ifllefdile to Samuel Lee. This Lee we have %vas for;Ted ; that Mr. Hales was the person on

into the chanictcr of. He is one that whr>m it must be charfrcd.

Ihii ^ ^ ^

for 4,700/. Gentlemen, when' you come in betwet^n that and liie r; and that there not

to kiok upon this note, you will see on it the beini;' sufficient room, therefore the word

pUnestmarka of fbri^y that can be. When ' pound' is crowded in, in n narrow manner,

ytu ooroe to look upon it, you will plainly see cuid then fullows the j/i so that it is not possible to

thai ■ ffree Samuel Edwards' still remains s!>ppn::p th it i Cany 7;entlemnn had wrote it be-

fiyhlc There is the double / which Air. fore the // u ns wrote, he v. ould have crowded

Edwards jfenerally useth, which we shall tiic word < pound' into no narrow a room. Bat

yrsfe br witness. And then between the j^*and there was tliou a necessity for it.

Ihtrtbereisano struck in, which you will T/iomai Maddox, Anne Clarke, and Mr.

IS not the same wntmrr witli ihe^ Booth, were called, sworn, and deposed as be-

le with* Samuel Edwards.' i\nd then fore ; and the note ol direcliona was again read,

out the v« you will see the two ce are m*^ o • ^, ^„«,„

i..»«.toiiimkeavwithastrokeatthcbottom « «/ - ni ' * ^^^t «.. iw «n*.

^«i^ - u-* *u-* -.*'ii *!.*-. • -Li Mr. Slranee. Please to look on that note,

? ^rS^ L! h ■•?"* P'^'y """ *'<"« Mr. Kdwar.ls'8 ?

F ^SSS^. !^1T.l"itiT iT.if^" Spiccr. The name i. bis, the ^and the r i.

i J?!"i*^ ''*J"'v ''" M?"* "'^""'^' also hi"- The o seems no to Kc of the same

Inn * value received. You will see a con- • i i • zv ■ j j • rm

j.^u i_^ii -.«/*! «••* I.* I \ mk, and la afterwards crowded m. The via

depth beneath, and that it must be cut uq* i,:g

•ffft» »on>ethiDg ei«>. How it was, it «.»- „, g^ y^,^^^^ -^ M, Edwards's way

CBis Mr. Hales to shew. As to the method off|.a»j,- ^a

vbcniDthis came to be discovered, it issuHi- o • W?^^^ a . i T?.i.»<a»i. » c Vm^^ u^

^:^^^» II -. .u « «i • I 1 1 - • 1 iSp:cfr, * Free Samuel Luwarus. * rrec he

Ci6Btt«tell vou, that this had been occasioned ..«./ii., ... •»_ -.i a-

I .. J- • c * r I ■ *i usurilly writes With a //.

t|r lae discovery of a note forafcd ui the name itT- c/ rh- 1*^ . «««- !,««.« u:«* :-

Jr If- r«u- - - I ■ - I '. -Mr. Stranfre: Did vou ever know nim m

•f Jir, uibsM>n, an apprehension and commit- r ^ i - i I'li 1 1 r i vj

_^. ^^ •, -I* , '^'i ^ ,, . t' frankiiirif, make use oi the word HrankV

■eotof Mr. Hales; that this jjavc occasion o -^ •^ ^i--

for several persons to enquire into the vpfiditv \tl ^c# ' **' ' ' ii« - i ^ i « «^.. k*.«» •«

^.i ' I • I. .1 I I I i- - ^If- Strange. How lonff have you been ac-

ihoje notes which they hid received irom n„„;n,,.i „:,f h;^ v * ^

Nr. Hales. As

!!I!!1 ^^^^ !!V* !r". T'^^rT T''' "*'''T ^'^- SUa^wx, mx vou ever know him any

T^Z, ^»\ '^^l^^** »^.c^'"« *" ^" discovered, „.,,.^^ ,,,nn...,w..i ..:... s ,.«.,nl 1^^ ? '

thit \Ir. Hales had

lbi» promissory

SubqpI Edwards

BMMllhs after date uf i^aumiri Ajt'i:, lur ^^HJUi. Vi t«, t-* ^ jI : i. j.!..* U-.;^-. *«

1. .1. ^ -^ *u * •* ^1 1 Mr. Slianiic. Uo vou think, that beinff ac-

h.»ed OMrniHyJUke: Mr Hales had been J, ,,,, ,,^,,^ ,. -f ,,,„^ , j ^ ' J

i» k*e!i on the evil ilay as loncf a» possible, it c x- w 1 1 r «• « r ..k<«..m

.„ • . » "^ - 1 » *• I S..:rcr. i cs. Sir. i bolM*vo tiiat I snoulu.

wu necessary to procure some substantial per- ,■ ... tvi «* r -4i <.«o»n<. i..»«

.^ . I I- -ir I-— :- ivi T I ' '*«r. i^trntice. What lurther reasons nave

mui be bail for him ; sir Biby Lake was np- ^ . • ,• ^.i- ..^i ■ ..,„i

^i;.. . . - i_. J.- "i .1 'i* you to believe this not tone his note;

pM to, bemsf a very subslaiflial f'entleinnn. It -^ c ■ i . „ i i- #i • *.. k<«i.:. •.rm««

L_- tv^-. r o _^ - ir t1 -i ii S-yurr. I can never hfMievr this t'> be liis note,

W^on.Wraof firwr an.Uoracon«.lcra^^^ for 'he never j;ir,^ a..v promissory ..-.ts for

•i, that be was dwire.1 to be bail for Mr. ^. „„^ „ •'„,„^ ^^ ^„ ' „i„,„,„ '„^i^ ^,^^

tulffi, he made a scruple, and rriused it at • i' . a i ■ „. « i «.. i

K.^ — I —La • I. ii* « •* ■»! II I whole note with his oivn liantl.
WM: at length to induce hirn to it, wlr. Hales

•id to him. Sir, you bhall be at no raaniier of ^'^ ^^'h '-«'"<^ s-.v irn.

HA; I have a pronii^sory note for 4,700/. Srrj. Whiftilicr, Sir, pray j-Ict-:^ to jjive ui

•hicb is made by Mr. E'hvjircls, who 'n a sub- an arrount,.whpM you ^^-..w il»it ivi.r Tr ;«., !:;")i

Mftatial man, payable nithin a'lx months:: this wliat fM*cas>on ii wa^ It > y^' '. l'» y)'A, uu-i l>y

Will be an ample lecurit^', if an execution ^thoin it \tas dcUvLTcdtoymi ?

Vt>L. XA II. U

•91] S-GEORGB IL

, Sir Biby I^ke, About tiuatimtWeWemonih
llr, Williim Hi}f» sent Mr. Kiaaenle; to me
al mv huuie iu Croiby-aifuaK, wbo UtU me
ibat Mr. Hilei wu arreued upno ■cconnt uf
abuaJgi^en bv him, anJ Blr. Kobert Hiles,
to Dr. ftlnpletoii at CaoluHiury ; tbat the
Doctor hBTiog arreateJ Mr. William Halei, be
ilMired Ibat I woutil be bail tor bin). I deaired
Hr. KiriDeriley to roeei uie Id iheereniDg:
we tiien weot to the judge* cbamben, and
give bail to the action. I tbought, that there
feiug no difficuiiT in the gentleinaD'a appear-
ance, there would be no damage in doing that
ibr a (rinid. Afterwards Mr. Halea camehim-
■eiftome, and desired me that I would be
bail again far him. I lolJ bim that it waa
Mmewliat eztraorditian' ; hot that however I
would meet him at Mr. Tumer'aBt Staples-iiia,
b> CDiiaider what to do. He came to me there
aboat four or fire, and brought a gentleman
with him, who be told me waa bit attorney.
Atfint, he told me not: but afterwards, we
imdeniaod that it was to ■ Writ of Error Ibat
I wai deaired to be put iti bail. I waa then
tirid by Mr. Turner, that if I waa bail to tliat, I
muM pay the money if they did not. Upon
thb I totd Mr. Halet tliat 1 cared not to be hail
In tuch a matter ai this, unless he would give
me Kund aecurrly. He told me that he waa
^iw to Peet'i coffee- honee, desired that I
would consider of it, and come to him again. I
alaid to consult Mr. Ttrmer, and toM him that J
wovid not be bail except Mr. Halef would giTe
«M good security. I theo went to Pecl'i
coffeehouse, and there found Hr, Hales and
Mr. Kinnersley together. 1 took Mr. Hales
to another part of the room, and told him, that
I wonld not enJanger myself and my family
W far as tn engage for such a sum, it being
abuul 1,500^. unless be would give me good
■ecurity. Upon this he put His hand in his
po«^ket, took out his pocket booh, and took out
of it tbii note. He looked upon i1, and said,
Ibat it was a promissory note Ibr four thousand
and <jdd pounds, .ini) vras |inyable within two
or three months afler. Hn put it into my
iMod : 1 looked upon it, and thought it was
»ery good secnrily to me for siiph a sum. Hf
desired that I would kevp it iu my own hand
till the raooey that 1 whs security for was paid ;
but said, that he would jmy tho money tontf
IbefcrelcouM hecalled upon-. 1 thought I had
■officient satisfaction, and went thereupon be-
ftee Ibe Isnl chief-iuttice lluymond, and gave
fcul to the Writ of Error.

Nei). WkUaktr. Sir, I would desire vou to
look oo the notr, and on the twck of ft, and
tell us whether it bath had any alteration f

Sir Biby Lake. None, Hir, tliat I know of.
Bnt I must give yon s particular account of
•tie thing. It was nut ail the lime in thesanio
cusliHly. Before 1 came there, my servant
went and wailed for me witli my hone in Hoi-
boni, 1 beinz going out of town. Going tbere-
^re to Air. Turner's, 1 desired bim to lay it by
Ibr no in his dnwcr, where he hath otbo-
fi|Mra of mine. Acoordinglj hedidlajr itop;

Trial of WmamHaUi,

and from that time it waa (In,,
Turner's cuMody, till after the time tj
Halea was taken up. When that ha

Harleof the million bank tent a

thereof. Upon that, when I came in.
to Mr. Harle, and told him Ibat I had
note of Mr. Eilwarda's in my hand ; a
I) hearing that you have a auapiclon I
.hat is in your bands is a bad note.
. reason to denre yon to go to !i
wards, and acquaint bim, that 1 bare
note iu Mr. Turner's custody, who is
Derbyshire. All thati could then do,
denre Mr. Turner's clerk to send to
the ker> that we might take oat the I
shew It. The clerk did so; and afb
time bad the key tent him, took out t
and I desired him to carry it to Mr. E
Jt was the same day that the note beca

Sir. Turner swoni.

Serj. Whilaker. Mr. Turner, pray [
kwk upon that note, and give us an
when you tint saw it ?

Turner. 1 believe it was one day io
Ifinniog of July last, about five or sii
ID the afleraooo.' I cannot be particul
the day, bnt I believe that it was the si
that sir Biby Lake gave bail Iu the
Error. He then brought me the noti
by for him. 1 verily bdieve thia to
same note.

8erj. Whitaker. Hath it had any al

J^rner. No, Sir. He desired me I
for him in a drawer, where I had othe
papen: accordingly I did: I new
town in Au^^uDi. AlUrwards my cli
me word, tliat sir Uiby L^ke desireij
would send up the key of the drawers,
to his notes being taken out. Upon tli:
up the key to my clerk, direclea him i
drawer the noti.> was, desired tliat h
take il out, and carry it to sir Biby Lai

Mr. Jlfure iwom.

yir. Strange. Dujou remember. Sir
reuejied a key from Mr. Turner?

More. Yes, Sir.

Mr. Strange Did you iheimpon I
note in the druwer ?

Jlforr. Yes, Sir; in thedrawer ofth

Blr, Strangt. Did you make any all
in itP

Mart, No, Sir; I took il out, and c
to Mr. Edwards.

Air. StraHgt. Hr. Spirpr, you are aci
nith iMr. Edwards'K nay of dealing.

be mves au ' ■' ' -

whole note f

Sputr. Yes, Sir; [ never knew h
any bnl tluit he wrote the whole note.

Hr. Slienge. Doth he use to givo t
lime? — Spicer, No, Sir, never.

Mr. Strange. Aly brd, we DOW da
Uw note may be read.

S9S] for a Misdemeanor,

Note read. •' March 30, 1738.

■* Sis months after date, 1 promiie to pay lo
SuMd Lee, or bis order, the sum of four
~ ae? en huodrcd miuDds, fibr tlie?alue

Samuel Edwards."

ladoraed, «< Samuel Lee."

Vr. Strange. You will obserre, {jfentletneo,
Aa vai * ffree' is legible atilt, and ubMir? e how
Ihiivd * poQiids' is crowded in.

Blr. Bird sworn.

fci Wkiiaker. Sir, do yoa know Mr. Sa-
■ad Lea T-^Bird. Yes, Sir.

Sari. WkUuker. What is he ?

Bird, A sea faring man.

Bcri. WkUoker. Do you koow his wife ?

Bird. Ytf, Sir.

Sen. Wkilaker, Did she nurse a child for
air. Hales?

Bird. Yn, Sir ; two for se? eral years.

Soj. Wkiieker. Is he a man of worth ?

Bird, No, Sir ; be is not worth 5/. in the
wU.

fai. Rah^. What say vou to this, Mr.
Bihif You see that they fiaveffifen an ac-
> of the method that you took to procure
^ers. This note they say, that you
as a true note, how should it come
that such a |ioor |M*rson as tliis Lee is
Kse OTer such a note to you ?

Bala. Mr. Lee gave it mc, there being
MaicB due to me.

8tij. Kdby. If you can prove any transac-
fm WtwecD yoa and that Lee, to induce the
jvytobelieTe that it was given you upon that
oaaderation, it will he pro|ier now to do it.
Rifci He is gone abroad.

Hej. Raby, Is there any person that can be
witDcss of any such transaction ?

Btia. No, Sir.

Hcr|. Raby. Gentlemen of the jury, William
flalft of London, late proldsntith, 'stands in-
^Ktedfor forging a note for 4JU0/. payable
vithin six months after date to Samuel* Lee,
oropler, in the name of Samuel Kdwonis, esq.
lad for publishing the same as a true note.
Yoa see, gentlemen, that there have been
feneral witnesses produced to shew how he got
pQsnsioo of frank covers, on pretence of
•ending news into the country ; and that he
Mtti a paper of directions for some, which di-
Rctioos were very shorl, ami so convenient fur
iW writing in the intermediate space over the
time, such a note as this. And they have
■«oro that these directions are his hand,
vkicb were sent over by his servant to Mr.
Edwards for franks. Now to shew you that
this note wss published by this man as a true
SMe, and that he is guilty hereof, sir Biby

lake hath appeared. He tells you, that

Acre were two several applications to him

^ W bail for Mr. Hales ; thaf he complied

MIy with the one, but the other he made

*ac icniple of, because it was more dan-

(Kaos ; it beioff to a Writ of Error, and for

ite 1,500(. He was therefore more cautious.

A. D. 17«). [204

and would not do it without security. He tells
you, that upon this, this note was offered and
deposited in his hands by the prisoner. This,
if you are satisfied of it, iixes the note uptm
the prisoner. Jt appears hereby, that it «i*as
in the hands of the prisouer. He cannot shew
you how he came by it : that then is a strong
proof to fix the charge in this indictment upon
nim. Where a forged note is found in a per-
son's possessicm, and it appears that he offcretl
it as a true one, and cannot give an •^count
how he came by it, that fixeth the charge of
forging it upon him. This note was published
in the city of London, and therefore the forgery
in the indictment is fixed there : for it is im-
possible to know certiiinly where a note is
forged, since no one calls evidence to see him
forge a note. Thus it appears to have been in
his custody, and it cannot otherwise be proved.
Other witnesses have been produced, to shevr
that the note hath uot been altered since it was'
delivered by him. Mr. Turner tells you, that
he received' it from sir Bibv Lake the day that
he receive<l it from Mr. llales, and laid * it by
lor him in his drawer; so that from the time
that it was published, it continueth in the same
state that it then vi'as. Other circumstances
have been laid before you, as the manner of
Mr. Edwards's making out any notes. He
doth not give out any promissory note made
for time, nor doth he ever give out any what-
soever but such as are all of his own hand-
writing. Another circumstance that liath been
laid botbre you, relates to the person to \^ hom
this note is made payable. It looks like a con-
trivance to have it ull in his own management,
in the hands of his servant, ami within his own
reach ; that this note should l>e mnde payable
to a poor man, whose wile was nurse to Mr,
llales's children, and the witnfss l»clieves him
not to be worth 6/. in the world. How should
he be entitled to this hill for such a sum, which
he might have indorsed to any other person?
No one sure would trust such a note with such
a person. He could not lie possessed of it iu
his own ri;;ht, and no otlu*r person would en-
trust a man, not worth 5/. with a note of this
value. This circuiiistunce tliey oifer to your
consideration : an<l tlioy take notice of some
letters which shew that there was originally

* ffircp,' wiiich is now turned into *for the,* be-
fore ' value rccfived.' Ii appears that it wa^

* ffrcc Satniicl Edwards:' and it i<) almost legi-
ble notwithstandini; the alteration that iiath

a ■ ■ ■ ■

In en mnde. He Imih suid nothing in his de-
fence to shew how he came hy that note. He
saith that l^e ^nve it him. Is it likely that a
man not worth 51. in the world should (five
out such a note as this 1' 1'lioii;r|i there is
no direct evidence of his for^iiii; it, that makes
no alteiation : if he directed it iu he done, it is
the same thing as if he did it himself; nor
doth it appear that any but liiin«4*lf is concern-
ed therein. He haviiifir |iublished it, is ifuilty
not only of the piib:icaiioii, bui ot' the forging
of it : if you believe it to l)e a forged note, ho
is guilty of the forgery. His publikhing of the

295J S GEORGE 11.

note is a safficient evidence of it. If a maD
had receiFcd such a note, be would readily say,
I received it of such a person on such an occa-
sioD : but there hath been no evidence of this
nature given. If you ask a man, how he came
b^ this or that things, he saith another gave it
iiiin : that may be said in every crimiual case ;
it is often said, but never regarded except
proved. You are tlicn to consider all
these circumstances, and to judge thereupon
whether it is a forged note ; whether it is
likely that Lee should have a note of this
value, and that there should be any reason for
his delivering such a note? There has been
no pretence of any transactions between this
Lee and Mr. Edwards, nor any colour of proof
on what consideration the gentleman should
H'rite such a note payable to such a man, and
give it him. Gentlemen, here is as full and
plain proof as can be expected, if the evidence
swear true ; so I leave it to you.

Clerk. Are you all agreed in your verdict ?

Jurif. Agreed.

Clerk. VYho shall speak for you ?

Jury. Our foreman.

Clerk, How say you, is William Hales
Guilty of the misdemeanour whereof he stands
indicted in forging a uutc in the name o\' Sa-
muel Edwards, esq. f(»r 4,700/. and pullishing
the same, or Not Guiltv ^—Foreman. Guilty.

Serj. ]VJiilaker. Af\' lord, the note being
found to be forged, we desire that sir Biby
Lake may deliver it to Mr. Edwards.

Sir William 'Thompson, That is but common
justice.

Mr. Sf range. My lord, there is another in-
dictment : but we will not trouble your lord-
ship with thut ; thercfurc the jury may be dis-
charged.

Serj. Whitahcr. Bly lord, we think it proper
to take notice, that upon the three indictments
whereof he hath been found guilty on the sta-
tute of king Henry U, for obtaining money by
false tokens, tlu're can l>e no fine in the case :
VfQ must therefore crave corporal punishment.

Sir William Thonij/xon. The question is, uhat
corporal punishmeni l*" To be sure he will be
pilloried.

Serj. Whitaker. The pillory, my lord, is no-
thing. The gentleman hath endeavoured to
t^et many tliousaud pounds of several gentle-
men : now he is only to look through a wooden
casement, and this is to make recompeiice.
AVe humbly hope, that according to the t\oiils
of the act of parliament, some punishment will
be ordered, not only ignominious but cor|N)ial
punishinciil, as the words are very exteM<>ive.

Sir WilUum Thompson. The Court lo be sure
will order icnprisoiiuicnt, as well as the pillory,
and security afterward.

Serj. Whilakcr. Hut should not the punish^
mem left to the discretion of the Court be ex-
tended lo Komctliing further?

Sir WilUum Thompson. 1 am not for extend-
ing it to ti)rtijre. 1 know not any precedent ;
wniilil I beLMn any thing of tlibt nature,
-iog himMlf la limited by our bw.

Trial ff WiUiam Hdet.

[«96

nAa^

Serj. Whitaker. The penalty seems left to
the discretion of this Court.

Sir William Thompson. I would not extend
it. 1 do not know but that the parliament oiay
think of something else afterwards.

Serj. Whitaker. Well, Sur, 1 have laid U be-
fore you, 1 submit it.

The Judgment of the Court :
That William Hales and Thomas Kinnefs-
ley should stand twice in the pillory ; once in
Fleet-street, at the end of Fetter- lane, and once
at the Royal Exchange, in Coruhill.

TIrat Hales should pay a fine of fii\y mtrk%
suffer five years imprisonment, and give seca-
rity for his good behaviour for seven years af-
terwards. And,

That Kinnersley should pay a fine of 2001
(an hundred on each indictment,) suffer two
years imprisonment, and give security for hit
good behaviour for three years longer.

Air. Hales begged that two years of his im-
prisonment might be remitted on account of his
age ; but it was not granted.

February 11 following, Hales and Kinners-
ley stood in the pillory at the Royal Exchaogi
in Cornjiill.

February 15. They both stood again in tbe
pillory at Fetter- lane end, in Fleel-sticat
Kinnersley stood both times in his canoDial
habit, thinking to draw comfiassiou and re-
spect from the popuhice, but it had the OM-
tmry effect.

Feb. 18th following, died in the Press-wd
in Newgate the said William Hales ; and April
7, 1729, died in the same place, of a fcftfi
Thomas Kinnersley, clerk.

" Forgery is now made felony, without be-
nefit of clergy ; as is likewise the publishing
any forged deed, will, bond, note, indorsement,
<Scc. knowing them to be forged, by the stat. 9
and 7 Geo. 2, which see for the several parti-
cular cases there mentioned.*' — Former Edit.

See, also. East's Pleas of the Crown, c. 19«

As to proof by comparison of hands, to which
it appears that recourse was had in some of
these Trials, see in this Collection AlgemoB
Sidney's Case, toI. 9, p. 8t7. See, also, vol.
19, pp. 397, et seq. vol. 16, p. 200.

At the time whf n these frauds were com-
mitted by Hales and Kinnershy. it was usual
for privileged persons to frank letters by mere
indorsement of their names. By stat. 4G. 3,
c. 24, it is required that members of either
house of parliament shall write the whole super-
scription thereof. A history of franking is in-
serted in the Gentleman's 3lagazine, voL d-l^
p. 644.

Some years after these cn<!r< of Hales and
Kinnersley, a curious uttuuipt was made by
one Fournier, a popish priest and fugitive from
France, to dejfraud bishop llondley of 8,900/. by
means of a promissory note furled on a frank.
The bishop published an account of the trans-
action, of wnicb an abridgement is inserted in
the Supplement to the Geutlemaii's MagajeiiM
for the yew 1757« See, also, 2 Vciey, 445.

S971 Proceedings in ilii House of Commons^ tfc. A. D. 1729«

[898

478. Proceedings against John Huc-gins,* esq. Warden of the
Fleet, Thomas Bambridge, esq. Warden of the Fleet,
Richard Corbett, one of the Tipstaffs of the Fleet, and
Wm. Acton, Keeper of the Marshalsea Prison : 3 George II,
A. p. 1729.

i IlPORT FROM THE COMMITTEE OF

THE House of Commons appoint-
ed TO enquire into the State
or the Gaols of this King-
dom, so far as relates to the
CRUEL Usage of the Prisoners ;
which occasioned the following
Trials.

Jovb 90 Die Martii, 1729.

Mr. Ogpktborpe, from the Cominittee ap-
pmei to cnquive into the State of the Gaols of
Hhi kHwdoin, made a Report of some progress
vkMh ibe Committee had made in their enquiry
blilht state of the Fleet prison, with the Re-
■riMH of the Committee thereupon ; and he
mi the Report in his place, and aUerwards de-
botdlhesame in at the table, viz.

The Committee find, That tlie Fleet prison
eient prison, and fonnerly used for the
I of the prisoners committed by the
al-table, then called the Court of tlie
SlvCbamber, which exercised unlimited au-
ifaari()-,and inflicted heavier punishments than
by lar Jaw were warranted.

Aai as that assumed authority was found to
be ao intolerable burden to the subject, and the
ncaoi to introduce an arbitrary power and ^o-
icremeni, all jurisdiction, power, and autlio-

* See New Pari. Hist. vol. 8.
** Aad here cau I forget the geoerous band
Who, touch'd with humau wue, redressive scarcbM
kio the horrors of the gloomy jail ?
l'r.piu«d. and uu heard, where misery moans ;
Where sickness pines ; where thirst nnrl hunger
And poor oiisfortune feels the lash of vice, [burn,
Wtule in the land of liberty, the land
1(~bofe every Mrcet and public meeting i;low
Wuhopen freedom, little tyrants racM ;
j^cutch'd the lean monM^ fiom the star\-ing mouth ;
Tcrt from cold wintry limbs the tatteHd weed,
L«tD robb'd them of the last of comforts, sleip,
Tb« firee-bgm liriton to the dung* un cbainM
'>r, V. Uie lukt of cruelty prevail'd.
At pk-asure mark'd him with inglorious stripes ;
And cni»hM out lives, by secret barbarouk ways,
T^atfor their country would have toil'd, or bled.
0 great design ! if executed well,
Vnh (latient care, and wisdom- tcmper'd zeal.
Te looi of twTcy ! yet resume the search ;
INtg forth the legal monsterx into light,
Vrmdi from their hands oppression's iron rod,
Aad bid the cruel feel the pains they give."

TaQMsoii's Winter.

rity belonging unto, or exercised in tlie tame
court, or by any the judges, officers, or mi-
nisters thereof, were clearly and absolutely dis-
solved, taken away, and determined by an
act made in the 16th year of the reign of king
Charles the 1st.

And thereby the Committee apprehend all
pretences of the wan!en of the Fleet to taka
fees from archbislio|>8, bishops, temporal peers^
baronets, and others of lower degree, or to put
tbem in irons, or exact foes for not doing so,
were determined, and abolished.

That atler the said act took place, the Fleet
prison became a prison for debtors, and for con*
tempts of the Courts of Chancer^*, Exchequer,
and Common Pleas only, and fell under thtt
same regulations as other gaols of this king-
dom.

That by an act of the 92d and 2dd of kinj^r
Charles the 2d, the future government of all pri-
sons was vested in the lords chief justices, the
chief baron, or any two of thi-ro, for the time
being ; and the justices of the peace iu I^oudou,
Middlesex, and 8urry ; and the judges for the
several circuits ; and thejusticcs of the peace,
for the time being, in their several pn clucts :
And {iursuaut thereunto, seveial orders uiid re-
gulations have been made, uhich the present
warden of the Fleet hath not regarded or com-
plied with, but hath exercised an unwurranlablo
and arbitrary power, not only in extorting ex-
orbitant fees, but in oppressing prisoners for
debt, by loading them with irons, worse than
if the Star Chamber vias still subi»isting, and
contrary to the Great Charter, the foundation of
the liberty of the subject, and in defiance and
contempt thereof, as well as of other good lawK
of this kingdom.

it appears by a patent of the third year of
queen Elizubeth, recited in letters patents
healing date the I9lh year of king Charles the
2d, that the Fleet prison was an ancient prison,
called Prisona de le Fleet, alias. The Queen's
Gaol of the Fleet ; and that certain constitu-
tutious were then established by agreement be-
tween Uichard Tyrrel, warden, and the pri-
soners ol'tlie Fleet, and a tabic of fees annexed,
in which the fees to be paid by an archbishop,
duke, uiaiipiis, earl, or other lord spiritual or
temporal, are paiticularly mentionetl, and the
tincascejtained \ihieh they are to nay for the
liberty of the house and irons ; ana that these
constitutiuus and orders were confirmed by the
said letters patent of king Charles the 2d:
Which letters |»ateut grant the oHice of warden
of the Fleet, and of the keeper of the Old Pa-

3 GEORGE II. Proceedings in the House qfCommonSf [SOS

tbe prifloners in the rules delirered iiim, to be
cannot have executed the trust of keepiiur his
prisoners in safe custotly, when he did not kaffm
who or where they were.

The Committee find that the said Thomas
Bambridge, who for some years acted asde*
puty- warden of the Fleet, and is now actnallj
warden of that prison, hath himself been aidisf
and assisting in an escape : that he canted t
private door to be made through the walls of lb
nrison out of the yard where the dogpc are^ tbe
key of which door was kept by hiinself, and hk
with his own hands opened the door and let oat
Boyce, the smuggler, charged at tlie lung*!
suit with upwards of 30,U00/. wbo WM aftar-
wards seen at Islington, and hath beeo fetnd
times let out of the prison by Bambridge.

The Committee find that the said Bambridgt
hath by himself and his agents ofteo refosed
to admit prisoners into the prison, though eon-
mittcd by due course of law : and in order to
extort money from them, hath often, oontmj
to an act of the 92ud and 33d of king GharUi
3, without their free and voluntary cnMsei^
caused them to be carried away fh>m the pri-
son gate unto a public victual hnjr or driokuigi
house, commonly called a spunging-bouae, be-
longing to him the said Bambridge as wardsi|
and rented of him by Corbett his tipstaff, aM
hath there kept them at exorbitant chami,
and forced them to call for more liquor ikan
they were inclined to, and to spend more thaa
they were able to afford, to the defraudiDf si
their creditors, and the distressing of their Ah
milies, whose substance they are compdM
there to consume ; and for the more eflcdnl
making them stretch their poor remains of eie-
dit, and to squeeze out of them the charity ol
their fi-ieiids, each prisoner is better or wom
treated according tu bis expences, some beinj
allowed a handsome room and bed to them'
selves, some stowed in garrets, three in one bed
and some put in irons.

That these houses were further used by tK<
said Bambridge, as a terror for extorting mo<
ney from the prisoners, who on secnrity givei
liuve the liberty of the rules ; of which Mr
Robert Castell was an unhappy instance^ a mai
bom to a competent estate, but being onfortn
nately plunged in debt, was thrown into pri-
son ; he was first sent (according to custom) li
Corhett's, from whence he by presents touBam
briiij^ redeemed himself, and, giving security
obtimed tlie liberty of the rules ; notwithstand
in*j; which, he had frequently presents, as thr
are called, exacted from him by Bambridge, aiM
was menaced, on refusal, to be sent radc I
Corl)€tt's again.

The said Bambridge having thus unlawfallj
exiortetl large sums of money from him in t
very short time, Castell grew weary of beiii|
mnde such a wretched property, and resolvin|
nut to injure farther his family or his creditor
for the sake of so small a liberty, he refused ti
submit to farther exactions ; upon which thi
said Bambridge ordered him to he re-commit
ted to CorbeU'i^ vhcre tbe small-pox tbei

S99J

lace at Westminster, the shops in Westminster-
hall, certain tenements adjoining to the Fleet,
and other rents and profits belonging to the
warden, to sir Jeremy Whichc^t and his heirs
for ever. And the said sir Jeremy rebuilt the
said prison at his oi^n expence, as a considera-
tion tor the grant thereor. But tlie said prison,
and the custody of the prisoners, lieing a free-
hold, and falling by descent or purchase into
the bands of persons incapable of executing the
office of warden, was the occasion of great*
abubes, and frequent complaints to parliament,
till at length the patent was set aside.

And a patent for life was granted to Bald-
win Leighton, esq. in consideration of his
great pains and expences in suing the former

Satentees to a forfeiture, and he soon dying,
ohn Iluggins, esq. by giving 5,060/. to the
late lord Clarendon, tlid, by his interest, obtain
a grant of the said office for his own and his
son's life.

That it appeared to the Committee, That in
the yr:ir 1725, one Mr. Ame, an upholder, was
carried into a stable which btofHl where tbe
strong room on the master's side now is, and
was there confined (being a place of cold re-
straint) till he died, and that he was in good
state of health before he was C4>nfined to that
room.

That the said John Huggins growing in
years, and willing to retire from bnsine&s, anri
nis son not caring to take upon him so trouble-
some an office, he hath for several years been
engaged in continual negociations about the
disposal of tbe said office, and in August last
concluded a final treaty with Thomas Bam-
bridge and Dougal Cuthbert, esqrs. and for
5,000/. to lie paid unto him, obliged himself to
surrender tbe said patent for his and his son's
life, and procure a new patent for the said Bam-
bridge and Cuthbert, which the said Huggins
did accordingly obtain, and Cuthbert paid m
money, or gave good security to pay 2,500/.
for one moiety of the said office of warden ;
and Bambridge gave land and other security,
which tbe said iluggins was then content with,
for S,500/. being for the other moiety of the
said office. '

Tliat Mr. Huggins being examined touchinsf
an instrument signed by him in November
1724, appointing Richard Corbett, one of the
five tipstafis of or belongmg to tbe Fleet prison,
acknowledged that he bad no power by virtue
of any patent from the crown to constitute such
tipstaff, but that when he came to his office
he found that such an officer had been so con-
stituted, and be took that for a precedent to do
the same.

That since the said Thomas Bambridge has
acted as warden, the books belonging tn the of-
fice of the \i arden have been very negligently
kept, and the discharu^es not duly entered, to
the great prejudice of many of fiis majesty's
subjects ;^ and he hath not regularlv taken
charge of the prisoners committed to his care
by his patent ; and hath not, as be himself
coofeaetbi e? er had any aotbentio list of

Caaleil ocquunted liim willi liix

Ml Ib&l (lislenifier, aoit Hint be

lliKl llu; [)iilling liim into a

iviiulil occasion iiis deuili,

befbri! lie could xeltle Iiih

tre a S"*'^ intinilice U> lila crc-

woulil expose Ilia family lo ile-

ind tlierefore be earai-sliy detireil

■igkl eitber \ie sent lo tnulher bouic,

m **» alo Uic sin) iuclf, w ■ Urnur. Tiic
WhKWj COM ot'thii poor gentlemsn moved
A*inis™U uf the «aicl Ilnnilirulere l*) COdi-
■■•, Mt ib:i< Ihey also used their iiimoBt en-
MMWi lo diiMiade him ftom sendiii|; ibis un-
hfBf fricuDcr lo tbst infected house : but
IwifcHu,! I«rctd hini lliilher, where lie (as be
tead Ih tkvuld) caui{lil llic small'iwx, and in
tfrwdati iDsd thereof, justly cbarfpn^ the
■UBuiknilftr oidibiscleBlh ; and UDlmjipily
Iwriag all lii* aflairv id the greatest confusion,
■<iaHiti«roa* family of small ubildn-n iiilbc

ll ifiii strd to Ihe Commillee, that the let-
>l( sui af ibe Fleet tenements to fncluallei'*.
fa At >*<«plioD of ^risnuers, bfitli been bul of
tatrnctisAl, aoditiat the tint of llieni lelt for
faprpoar was to Mary Wbitwood, nho still
MMaotmaDi of the same, and that ber rent
WB«d 3il. tier arm. Iteen iocreaaeil lo 60'.
■rfannaio aunber of nriMDersitipulftied to
h^akapny of, to enable her to pay so great
ana; and that she, to procure the benclit of
klr^i web a uuinhtr nl ptisoners sent to her
h^ lialh, o*er and abore the increased rent,
I^Msrdlo makeapresrnt tolheHBid Bam-
Win •( fnrty ([uiiieas, a* also of a toy, (as it
kOU) haag tbe model of a Chinese ship,
H^^aaiWr. spt insil'er, far which fourscore
InW-fKm bad (icrn olTrTed her.

Ab* iJm' first method of extortia;;; money
^■^ anlufipy prisonen ; and wliea they
^•alaocer bearllie misery and et|ieni'eof a
lfsipaB'Ti<HMe, belbre they can obtain the pri-
•Afi tf hrtna; adiniitcd into the |<nsoo, lliey
■■•Uicedlaewnply with such e\atbitant fees
■ 1U «d Dambridge thinks fit to demaud,
rtrt. tflbey do not, ihey are vure, under ta-
Mi |s«i*nce*, of bein^ turned dDivn to the
^^MM SHki, if not put m irons and diingeous ;
■lllil* baabcra done to those who were wilbnif
■'afemi to pay the Ires »labliEhe<l by the
*~"'" m >n*dii by tbe judges ol the Common
T(iD. T«m inr, which ought to hate
^up iasume public ptoce in the priaon,
Kahich (br friaon'ri might bare free access,
ta via avcirlrd by ihi! said James Damea,
pkMni lo unirr* uf the said Bambridge;
^cb taUe iif Ifi-a srn'in* lo he unreasonable,
■■ua It oldtiTi-i tiu-u nlin are committed for
•• asini; alitr ' i' '-'-'- tti pay such

9«lSIH* II

H««T(ii

1 JU. a.rt<.i< L of inch

I ^b«!i,in< .iiiusfram

I fc nlMtasiitc priKiiic, s, il„. i„ji,l Biitubrid||:e
I ^"l |MWad* be lias a righx, as warden,
Ik nnui as luliioilril [unmt of cbtnging

a them '

John Ilug^m anclolhtri. A. D. 1729.

pristneri from room lo t^>om ; ofliirniti|[ tli
iQlo ilie common. side, thnn^h tliey bate paid
the tnaater's side fee ; and loflicting arbili ary
punishments by locking llieni down, in un-
wholesome dungeons, and Idsdtnx them with

e iuataiicet of nhich fal-

Jacob Alendez Solas, a Portneorw, was, h
far as it appeared to the Cnmniinee, one of the
fiist prisoners for delit that erer was loadeJ
tviib irons in the Fleet; the said BamliriilD*
one liny called him into the gale-house of ihc
prison, called the Lodge, iTh(.Te he candid liiin
lo be seized, fettered, and carried to Corbetl's.
ibe spungiuir- bouse.Bnd there kepi fur upwards
uf a we«k, and when bron^it back into the pri-
son, Bambriilge caused him tn be turned m[»
the dun^on, called the Strong Room of tha
Master's side.

Tbis place is a vault like those in irhich the
dead are interred, and wherein the bodies of
persons dyini! in the said prinonare usually de-
posited, till the coroner's inquest haih passed
upon them ; it bas no chimney nor fire-place,
Dor any light hut what comes over Ihc door, or
thraiiglia hole of about eight inches square, ll
Ib ueiilier paver] nor bonriled ; and Ibe rough
bricks apjiear boib on the aides and top, bcinr
neither walnscolled nor ptasleivd : what adda
lo the dampness and stench of the place is, iu
being built orer the common sewer, and ad-
joining to llieaiiikand dung-bill where all the
naslioess nf tlie prison is cast. In ihis miser.
able place the poor wretch was kept by llie said
Ilambridge, manacled and shackled for oear
two montlis. At length, on leceiving live gui-
Deas from Mr. Kemp, a friend uf Solas's, Bam-
bridge released the prisoner from bis cruel con-
finement. But though his chains were taken
off, his terror still remained, and the unbappj
was prevailed upon liy that ti

re<|uirvd of him 1 and the Committee ihem-
selres saw an instance of Ibe deep impression
his suffrrinin had made upon bim ; fur on bit
turmising, Irom souiEthiugtaid, that Baiiibridge
was to return again, as Warden of the Fleet, lie
fainted, and the blood started oitl of bis luoulli

CapMin John Mackpheadris, who was bred
a merchant, is another ntelancboly iDaiaiice of
ihe cruel use the said Bsmbridge hath made
of his assumed authority. Mackphcadria woa
a considerable trader, and in a very flntirishing
condition UDli I ihevear ITUO.wben beingbound
for large sumslo tW crown, forapersnnatter-
warda niined by the misforlunes ol that year,
he was undone. In June, 1727, he was a pri-
soner in Ihe Fleet, and although be bad beiore
paid bis commitment- fee, the like fee was es.
lorled from bim a second lime i nnd be baviog.
furnished a room. Bambrirlge demanded an cx-
travngaoi price lor il, which herefiuied to |iay ;
and urged, tlial it was unlawful fur ihc warden
i« demand extrarao'int rents, and ntl'ered lo
|»ay whal was Ivguly dqe : ^olivitli«laodil>(f

303]

8 GEORGE IL Proceedings in the House of Commons f

which, the said Bambrid-^e, assisted by tlie
laid James Barnes and other accomplices, broke
open his room, and took away sercral thinjfs
of great value, amongst others, the king's ex-
teat in aid of the prisoner (which was to have
been retamed in a few days, in order to procure
the debt to the crown, and the prisoner's en-
largement,) which Bambridge still detains.
Not content with thia, Bambndge locked the
prisoner out of bis room, and forced him to lie
in the open yard, called the Bare. He sal
quietly under his wrongs, and getting some
poor materials, built a little hut to protect him-
aclf, as well as he could, from the injuries of
the weather. The said Bambridge seeing bis
unconcerned ness, said, ** Damn him ! ne is
easy. I will put him into the Strong Room
before to-morrow *," and ordered Barnes to
pull down his little hut, which was done ac-
cordingly. The poor prisoner being in an ill
■tate of health, and the night rainy, was put to

Et distress. 8ome time after this he was
at eleven o'clock at night) assaulted by
ibridge, with several other persons his ac-
complices, in a violent manner; and Bam-
bridge, though the prisoner was unarmed, at-
tacked him wiih his sword, but by good fortune
was prevented from killing him ; and several
other prisoners coming out upon the noise, they
carried Mackpheadris for safety into another
gentleman's room; soon after which Bam-
bridge coming with one Savage, and several
others, broke open the door, and Bambridge
strove with his sword to kill the prisoner : but
be again got away, and hid himself in another
room. Next morning the said Bambridge en-
tered the prison with a detachment of soldiers,
and ordered the prisoner to be dragged to the
lodge, and ironed with great irons ; on which
he desiring to know folr what cause, and by
what authority he was to be so cruelly used ?
Bambridge replied, *' It was by his own au-
thority, and damn him he would do it, and have
his life." The prisoner desired he might be
carried before a magistrate, that he might know
his crime before he was punished ; but Bam-
bridge refused, and put irons upon his legs
which were too little, so that in forcing them
on, bis legs were like to havo been broken ;
and the torture was impossible to be endured.
Upon which the prisoner complaining of the

Sievons pain and straitness of the irons, Bam-
idge answered, "That he did it on purpose
to torture him :" on which the prisoner reply-
ing, " That by the law of England no man
oiuriit to be tortured ;" Bambridge declared,
** That he would do it first, and answer for it
aftei^ards ;" and caused him to be dragged
awaj to the dungeon, where he lav without a
bed, loaded with irons so close rivetted that
thev kept him in continual torture, and morti-
lied his legs. After long application his irons
were changed, and a suigeon directed to dress
his legs, but his lameness is not, nor ever can
be cored. He was kept in this miserable con-
iSAaa fbr three weeks, by wfaiefa bis sight is
yitly prqodioad, mid io daagcr of being toil.

The prisoner, upon this usage, peti
judges, and afler several meetings, a
hearing, the judges reprimanded Mr.
and Bambridge, and declared, << Tha
could not answer the ironing of a nn
he was found giiilty of a crime ;" be
out of term, they could not give the
any relief ur satisfaction.

Notwithstanding this opinion of th
the said Bambridge continued to kee
soner in irons till Tie h&d paid him six
and to prevent the prisoner's recov<
mages for the cruel treatment of hi!
bridge indicted him and his principal
at the Old Bailey, before they knew i
of the matter ; and to support that in
he had recourse to subornation, and ti
of bis servants out of places which
bought, because they would not swe
that the prisoner had struck the sa
bridge, which words he had inserti
fidavits ready prepared for signing, a
they knew to be false. As soon as 1
apprized of it, they applied to the loi
who ordered the grand jury down to t
where they fonnd that Bambridge wa
^es50r. Bnt the bill against the prii
mg already found, the second inquir
late.

The prisoners being no longer abli
the charges of prosecution, which ha
cost 100/. and being softened by pron
terrified by threats, submitted to plea
on a solemn assurance and agreem
with Bambridge before witnesses, of fa
one shilling fine laid upon them ; bi
as they had pleaded guilty, Bambri
advantage of it, and has continued
them and their securities ever since.

The desire of gain urged the said B
to the preceding instances of crueltj
more diabolical passion, that of malice,
him to oppress captain David Sincia
following manner :

At the latter end of June or beg
July last, the said Bambridge declar«
said James Barnes, one of the agei
cruelties,. **That he would have
blood;" and he took the opportunity <
festival day, which was on the first g
following, when he thought captaii
might, by celebrating the memory o
king, be warmed witli liquor so far \
him some excuse fur the cruelties whi
tended to inflict upnn him. But in-sc
sure he was disappoiuted ; for cantaii
was perfectly sober, when the said B
rushed into Iiis loom with a dark lai
his hand, assisteti by his accomplici
Barnes and William Piudar, and sup|
his usual guard, armed with muskets i
nets, and without any provocation gi
his lanthorn into captain Sinclair's fai
him by the collar, and told him he m
along with him : captain Sinclair, tho

Erised, asked fur what, and bjr what
e so treated him P Upon which Bi

iigahui John Huggins and others.

A. D. 1729.

[306

:. iinikKiMd etptaiD Sinclair, who still de* i seductHi finnicby indulpfinir them in riot, and
" ' • ^ ' • .••..•- lerrifitui otliers with fear of duress, lo swear to

and subscribe such false uffidavits us he thought
fit 10 projiarc for them, on several occas^ions;
in all which wrongs and oppressions John Eve-
rett also actrd as one of the said Bambridjre's
wicked nccnmplires.

That the said Bambridge being asked by the
Committee, *' By nhat authority he pretended
;to put prisoners into dungeons and irons ?" an-
swered, ** That he did it by his own authority
as warden, to preserve the quiet and safety of
the custody ot the prison."

But it appeared to the Commiltee by the
examinations of many witnesses, that before
the time when Gyhbon and the said Bamlnridge
I acted as deputy- wardens under Mr. Hug^inSi
the quiet and safety of the custody were very
well preserved witiiout the use of irons or dun*
(j^eons.

That the two dun^^eons, called the strong
room on the master's side, and the strong^ room
on the common side, w«re both built within
these few years ; and that the old method of
punishing 'drunken and disorderly persons was
putting them in the stocks ; and the ponisb-
ment of those who had escaped, or attempted
to escape, was putting them uiMin a tub at the
gate of the prison, by way of public shame, or
securing them without irons, in their proper
rooms for some days.

And tirat the said duns^enns were built in
defiance of, and contrary to the declaration of
the lord Kinfsf, when lord chief justice of the
Common Fleas ; who, upon an application
made to him on behalf of the prisoners of the

Fleet, when Mr. Hucrj^ns and Gybbon

ur^rcil that there was danger of prisoners es-
cnpinjj, declared, that they mi/^ht raise their
walls higher, but that there should be no prison
within a piisun.

That upon the strictest enquiry, the Com-
mittee civjld not find that any pri*ioncrs in the
Fleet for debt had been put in irons before the
said Mr. Ilu.«({;ins had the ofiicc of warden.

That it is not the oi<ly design of the said
Thomas Bantbrid^e to cxt<irt nior.-. y from his

Is kBOw by what aothority they so
hw, BMnbridge grossly insulted him,
"*', bim with bis cane on the head and
wbilyt he was held fast by Pindar
Hueb base and scandalous usage
If Aiijprtlcmiii, who bad in the late wars al-
l^iMliiiii himself with the greatest coii-
Wy,|iiiiliy ind honour, in the service of his
MtaOD miny the most brave and desperate
MHi, muit be most shocking and intole-
irikjjtlcafliiD Sinclair bore it with patience,
,fl|iifiriytO(;ooutof his room unless he
ipMM; vbereupon the said Bambridge
10 ruD his cane down his throat, and
bii gund to stab liioi with their bayo-
rdbvhim down to the said dungeon,
thcCSimig Room ; the latter of which
tiiyM,iBd Bambridge kept him confine<l in
iMvpandloithsoroe place, till he had lost
WPMffhiilimbs and memory, neither of
jlttkH he perfectly recovered to this day.
flmnnviting cruelties were used to make
fMMMmntmdre terrible ; and when Bam-

aimid he was in danger of immediate
he rmioved him, for fear of his dy in^^ in
"ti caused him to be carrieil in a dying
ifron that dnngeon to a room where
IKIM no bed or furniture ; and so unmer-
4H^ fRvnted his friends having any access
jbKji, thit be was four days without the least

^iffved to the Committee by the evidence
.nMfND and others, who were prisoners in

ebiK,tbat when captain Sinclair was forced
AMhstbeome dungeon he was in perfect

j^nSnclair applied for remedy at law
It

the said cruelties of Bambridge, and
MpKarerf a Habeas Corpus fur bis witnesses
jifcihwght before the sessions of Oyer and
"■^i when the said Bambridge, by cohiur
',UitiRnned authoiity as warden, took the
■■eriii of Habeas Corpus from the officer
•■"■Joty h was to make a return of them,
■jMntnanded him to keep out of the way,
J^tbebiroself went to the Old Bailey, and
iJ^A^y indicted captain Sinclair and such
*|il vitoesies as he knew he could not deter
P>*BtVi or prevail with by promises to go
^Aetnith.

JtMP Sinclair had temper enough to bear
^■Hljr almost insupportable injuries, and to
^^ himself for a proper occasion, when

prisoners, if they survive his inhuman tieat-

mciit, hut he seems to ha>e a f.trther \icw, in
case it eausui ilentii, of possessiiip^ himself of
their eflVets. One rv'mnrkabic juouf of which
the Cunimittre think prnper here to inseit, viz.

Mr. John Holder, a ^;'paMish merchant, was
^^ - ~.^^,. .w. wm w.<^|^. w^^«».w.., .. ..w a prisoner iu tlu^ Fleet, nml had a room uhich
Meihoukl be done nim by the laws of the he fitted up wi'.ii his own t'urniture, and had

with him all \\\s bof)ks, aceounts and writiii^^
and otljer riVi rJs, to the value dfab >ut 30,0()0/.
whicii he ('eclarcd by ailMiiivit, upon the fol-
lowing oecasiMu :

The baid Thomas Banjbrid^e, by foroe,
turned tliesp.id Mr. Holiler (»vcr to the common
side, and took possession of his room, in whicli
all his cilects were.

Mr. Holder remonstrated stronijly against
this usage, and Bambridge refu^in^j^ to restore
him to his room, or possession of !iis eflects, }'^
made a proptr atadavil m otA*»^ \cv ^VV^^ ^'*'
X

. ta the said Bambridge ha« forced others
VVfiogs and injuries beyond human bear-
Hi i^ endeavour the avenging injuries and
^P^vioiis which they could no longer endure.
^Ji' it appeared to the Committee, that the
*'BMBbridge, in order to avoid the punish -
^ dae to these crimes, hath committed
ptTf vid hath not only denied admittance to
wiificitori, who might procure justice to the
^^ prisoners, and in open defiance to the
■*! tebeyed the king's writs, but hath also
VOL XVII.

307]

3 GEORGE II. Proceedings in the House of ConimunSj SfC»

jiidj^es for relief, and declared that be feared
his eflects ini^ht be embezzled whilst he was
thus unjustly forced irom theai, and that he
feared Bainbriiige's cruel treatment of him
would be the cause of his death : the miseries
of the common side, which he dreaded, had
such an eHTcet upon him (being a man of
an advanced age, and accustomed to live in
ease and plenty,) that it threw him iuto such a
fit of sickness as made his Hfe despaired of, and
io his illness he often declared, " That the vil-
lain Bambridge would be the occasion of his
death." Which proved true; for liambridge
finding Mr. Holder like to die in the duress
which he liad put him into, (for his own sake,
to avoid the punishment inflicted by law upon
gaolers who so inhumanly destroy their pri-
soners) permitted him to be carried back to his
room, where in a few days he died of the said
sickness, contracted by the said forcible re-
moval of him to the common side by Barn-
bridge, as aforesaid.

Air. Holder by his last will appointed mnjor
Wilson and Mr. J;ohn Pigott trustees for his
son, a youth of about 13 years of age, who had
accompanied hiiu in the time of nis contine-
meot.

This young gentleman, aApr bis father's
death, locked up his eflects in several trunks
and boxes, and delivered the keys thereof to
Mr. Pigott as his trustee, who locked up the
room and took the key with him : but the said
Thomas Bambridge caused the said room to be
broke opeu by Thomas King, anotlier of his
accomplices, and caused the said effects to be
seized, after that he, Bambridge, had forced
Mr. Pigott out of the prison, (though a prisoner
in execution) and locKcd down major Wilson
(the other trustee) in the dungeon, to prevent
their taking any inventory in behalf of Uie heir
at law, then an orphan.

These evil praclicus of letting out prisoners,
extorting exorbitant fees, sufleriug escapes, and
exercisingall sortsof inhumanity for gain,maiy io
a great measure be imputed to the venality of'the
warden's oflice ; for the warden who buys the
privilege of punishing others, does consequently
sell his forbearance at high rates, and repair his
own charge and loss at the wretched expencc
of the ease and quiet of the miserable objects in
his custody.

Upon the whole matter Uie Committee came
to the following liesolutiuns, viz.

Resolved, That it appears to this Committee,
tliat Thomas Barobri<W, the acting warden of
the prison of the Fleet, nath wilfully permitted
several debtors to the crown in great suras of
roone}', as well as debtors to divers of his ma-
jesty's subjects, to escape; hath been guilty of
the most notorious breaches of his trust, great
extortions, and the highest crimes and misde-
meanors in the execution of his said office;
and hath arbitrarily and unlawfully loaded with
irons, put into dungeons, and destroyed pri-
soners for debt under his charge, treating them
in the most barbarous and cruel manner, io

high violation and contempt of the laws •
kiugtium.

Resolved, That it appears to this Comi
that John Huggins, esq. late warden <
prison of the I*leet, did, during the time
wardenship, wilfully permit many consid
debtors in his custody to esca|>e, and w
torioosly guilty of groat breaches of his
extortions, cruelties, and other high c
and misdemeanors in the execution of hi
office, to the great oppression and ruin of
of the subjects of this kingdom.

The Resolutions of the Committee beii
verally read a second time, were, upon the
tion severally put thereupon, agreed ui
the House, and are as follow, viz.

Resolved, nem, con. That Thomas
bridge, the acting warden of the prison <
Fleet, hath wilfully permitted several d
to the crown in great sums of money, ai
as debtoi-s to divers of his majesty's subje
escape ; bath been guilty of the most not
breaches of his trust, great extortions, ai
highest crimes and misdemeanors in the
cntion of his said ofiic£ : and hath arbit
and unlawfully loaded with irons, put int(
geons, and destroyed prisoners for debt
his charge, treating them in the most barl
and cruel manner, in hip^h violation ant
tempt of the laws of this kingdom.

Resolved, nem. con. That John Hui
esq. late warden of the prison of the Flee
during the time of his wardenship, wi
permit many considerable debtors, in his
tody, to escape ; and was notoriously gui
great breaches of his trust, extortions, <
ties, and other high crimes and misdeinc
in the execution of his said oifice, to the
oppression and ruin of many of the subjc
this kingdom.

Resolved, That it appears to this 11
That James Barnes was an agent of, ai
accomplice with the said Tikoinas Bamt
in the commission of his said crinu's.

Resolved, That it ap|>ears to this II
that William Pindar was an agent of, ai
acc<impltce with the said Thomas Bauil
in the commission of his said crimes.

iiesolved. That it appears tu this 11
that John Evcrt'tt was an anient of, an
accomplice with the said Thoaias BamL
in the commission of bis said crimes.

Res'jlved, That it appears to this 11
that Thomas King was an a^rf^Qt of, ai
accomplice xi itii the said Tliunias Banifa
in the commission of his said crimes.

Resolved, tiem. can. That nii humhh
dress be presented to his majesty that be
be graciously plfased to direct' his attoi
general forthwith to prosecute, in the
effectual manner, the said Thomas Bamb
for his said crimes.

Resolved, nem. con. That an humble
dress be presented to his majc-stv ilnii hi
be graciously pleased to direct bis attoi
geucral foruiwith to prosccutei in Ui«

309]

Trial nfJohn Htiggim.

A. D. n2<>.

[310

■ffflclml mtDner, the said John Hugvius for
a:4 cnincs.

Rnolredy That an humble aiMress be pre-
KMr^ to hm mHJcstv that be will be ^raciuusly
plttifd to direct liis attomry-f|;eneral forth-
with 10 pr09t!cute, iotbe ODost c flertiinl manner,
ihcuid James Barnes, William Piniiar, John
IwMI, and Thomas King, for their said

€Msed, That ttie said Thomas Dambridjcfe
It SHunitted close prisoner m his niaiesty's
!■( af Newgate, and that Mr. Speaker do
■H bis warrants acroriiin&^ly.

Mrrrd, That the said John Hugrgins, esq.
Iresninitted close prisoner to his maitntjr's
p«l of Newgate, and that Mr. Speaker do
■SK his warrants according! 3' .

Oirdered, That the said James Barnes be
csanitled close prisoner to his majesty's gaol
•TNevsmte, and that Mr. Speaker do issue his
vmiBla accordinglv.

Oidcred, That the said William Pindar be
t— miued dose prisoner to his majesty's gaol
tf Newgate, ami that Mr. Hfieaker do issue his
vmants accordingly.*

Oidered, That the said John Everett be
■■■itted dose prisoner to his majesty's gaol
tf Vrwgate, and that Mr. Speaker do issue his
■euordingly.

Ordered, That the said Thomas King be
committed dose prisouer to his majesty's (^ol
of Newgate, and that Mr. Speaker do issue
his warrants accordini^ty.

Ordercil, firm. con. That leave l»e given to
bring in a Bill to diMilde the said Thomas
Bam bridge to hold or execute the otHce of
warden of the prison of the Fleet, or to have
or exercise any authority rdating thereto ;
and that Mr. 0(;lethnri>e, Mi*. Earl, the loni
Percivall, and Mr. Hughes do prepare and
bring in the same.*

Ordered, nem. con. That lea?e be given to
bring in a Bill for better regulating the prison:
of the Fleet, and for more effectual i^event-
tng and punishing arbitrary and illegal prac-
tices of the wanlen of the said prison ; and
that Mr. Oglethorpe, Mr. Cornwall, Mr. Glan-
▼ille, and Mr. Hughes do prepare and bring in
the same.

Which Bills passed into a law.

They also enquire«l into the state and coddi-
tion ot the Marshalsea prison, and ordered a
prosecution against William Acton for murder.
See the fdlowing Cases.

* As to some of the proceedings hereupon,
see 4 Haiseli's Precedents, title Iropeachment,
chap. 3.

479. Tlie Trial of John Huggins,* esq. Warden of the Fleet Prison,
for the Murder of Edward Arne, at the Sessions-House in
the Old- Bailey, May 21, before Mr. Justice Page, Mr. Baron
Carter, and others his Majesty's Justices : 3 Gjeokge IL a. d.
1729.t

Tuetday^ May 20, 1729.

Proclamation was made for all persons cou-
CRBcd to attend.

CL nf Arr, \ OU good men, that are im-
yiaaellcd to enquire, &c. answer to your names,
ladsafe your tines. John Huggins, hold up
%hand. (Which he did.)

CUrk, Thou standest indicted hy the name
•f Jeba Huggins, esq. warden of the Fleet, Aec.
[The Indictment being inserted with the Spe-
ciii Verdict at the end of tliis Trial, is omitted
^.] How sayest thou, John Huggins, art

• See Fitz^ib. 177. 1 Barn. 358, 396. S
^ 882. S liord Raym. 1574. East's Pleas
■f the Crown, chap. 5, § 92. See, too, 8 Term
Bip. 457, and the Cases which follow this Ar-
tde. tier, too, 3 P. Wms. 494.

t These Trials

of Huggins, Bamhridge and | i^^" ™rown,
were all taken in shirt- hand by Mr. P«t« Sujoumey,
I to the Committee api^nted T°^™r.P'^'

like BkCDD, (Clerk to the Committee appointed
kcoqmre into the gaols of the Fleet, Narshal-
■a, 4w.) who in nis life-time asked 200/. for
it csyy ofthea. jForawr JBtfi^ioii.

thou guilty of the felony and murder whereof
thou stamiest indicted, or Not Guilty.

Huggins. Not Guilty.

Clerk. How wilt thou be tried ?

Huggins. By Gi>d and my country.

Clerk, God send thee a good deliverance.

Wednesday f May 21.

Proclamation was made for information.

Clitk. Thou the prisoner at the bar, these
men that thou shah hear called, and personally
appear, are to pass bet^reen our sovereign lord
the king and thee, upon the trial of th}' lite and
death; therefore, if thou wilt cballeuge them,
or any of them, thy time to speak is as they
come "^ to the book to be sworn, before they are
sworn.

Jury.

Philip Frusliard, Thomas Clayton,

John Hoar,
Martin Wardell,
Richard Pitt,
John Milward, John Price,

Daniel Town, James King,

Clerk. John Uuggitis, bold up thy hind.

311] 3 GEORGE n.

OVhich he did.) Yoo of the jury look upon
the prisoner (and was goings on.)

Muggins, M V lord, the disUoce is too ^^reat
to be hf ard : 1 desire I may come to the inner
bar; for, rov lord, when any niGonTenieuce
happens, it is the constant rule to admit the
prisoner to come there : it was done in the Case
of Sanders and Clifton. •

Mr. Just. Jfage. Whenever the Court con-
cei?GS an inconvenience, it has been allowed :
but I csDiiot allow it till then.

Clerk. You trentleinen of the jury look upon
the prisoner; he stands indicted by the name
of, &c.

Prout the Indictment muta^u mutandii,

Huggim. 1 must desire, mv lord, to have
the indictment read in Latin. (VVhich was ac-
oonlingly done.)*

Mr. Holland. (Member of parliament for
Chippenham.) My lord, and you ^ntleroen
of the jury, I am of counsel for the kingf ; and
this is an indictment against John Huggins, for
aiding and abetting James Barnes in the mur-
der of Edward Arne ; that John Huggins was
warden, and one James Pames was then his
agent, who did in November, in thf 11th year
or his late majesty, make an assault upou Ed-
ward Arne, and took Arne involuntarily, and
confined him in the strong room (without the
eoiofort of lire, olose-stool, or other utensil),
built near the place where excrt*ments are
thrown out, a place very unwholesome, and
most dangerous to the health ; that Arne fell
sick in the said room, and languished till the
7th of December, and then dieil; that Hug-
giuR, through l)i« cruel dis|K)sition, l»eing an
opjir(>t»sor of' the prisoners, di.l, &c.

8crj. Ches/iitc. My lord, and you gentlemen
of the jury, James Barnes, who stands indicted
for the murder of £ilward Arne, is tied from
justice ; anil John Hoggins the prisoner at the
liar, also btoiids indicted for aiding and abetting
in the said fact. He was then warden of the
Fleet, and had the custody and care of the pri-
soners then committed to his charge ; there-
fore it will be necessary to let you know what
bounds the law sets to gaolers, and In prisoners.
The law sets fences to them both: the gaoler
is to be protected in his duty, supported and
niaintained in it; and it is juitifiable, if, in de-
fence of himself, he destroys a luaii, and com-
mits an act of felony : on t'iie other hand, if by
any unnecessary tyranny, or restraint, any of
the prisoners come by u*n uniiriiely death, it is
murder in the gaoler ; and this lost is princi-
pallv nccesHary for your attention.

F^duard Arne, on the 12th of May, ir25,
wa'i committed upon mesne process; he was
a quiet, peact'sihle, and inuflPi-nsive man, and
coutiuued i;o till Septeml^er in that year, ihe
gcntlrinan at the bar, not com ent with 'iii' tuMne
Kccurity that his predtcrssors hud, took it in his
bead to innke a strong room, which was built
about three months before the death ot Edward

Trial of John Huggins^

[312

* See A Note, i A foi. 19, p. 1998.

Arne ; it was like a vaolt, boiU Of«r the oon-
mon sewer, near a kiystall, where the filthy
matter was lodged, nothing but bridDi and
mortar, not tiled or pointed ; and in thia ooe*
dition, about September, one Barnce, aervaat
of the defendant, came to the said Arne, M ha
was sitting in the cellar, rushed upon hioa, aid
took him away to the dungeon, a place v^bcM
nobody had been put in before; in this nii
place of restraint he was confined, though l»
was in a quiet condition : there was no fire» mm
flre-place, no light but through a hole ever the
door, and a little hole by the aide, big eoeadi
to put a quart pot in at ; there waa not Im
want only of fire, or fire place, but there mm
no chamber-not, no convenience for the eMa af
nature, so. that it roust fall, and be convene
with it : the place was so moist, that dropa qf
wet ran down the wall The roan immediaisly
lost his voice, his thn»at was swelled, and hm
clothes rotted with the dampneas of the placi^
and the poor man, huving a feather -bed,
into it, and the feathers stuck ckiae to bin., (
in this condition he lay; but one day, the
being open, he got out, and ran into the
mon hall ; he looked, gentlemen, mecc like n
feathered fowl, than an human creatare. Thii
waa represented to Mr. Hoggins, who gene^
rally Uved in the country, and did net oome li
the gaol so often as he ought ; but at one tiiB%
when he was at the prison, he aaw tbe HMjk
and the poor man just saw him, his eye fal(
the door was cloi>eil, and he died : the wsidi^
gentlemen, bad the door shut, and ordered him
to be lucked up, and he continued so locked m
from September till the 80th of October; aai
it is wonderful to think (if he had not been n
man of a very strong frame) how he cookl have
continued there so I'-ng. It moved the eeen-
passion of his fellow- prisoners, who applied la
have him released out of that place, but that
not being done, a little care was taken toatp
tend him. Gentlemen, at the time when Mr.
Gybbon was deputy, some of the priaonen
askefl him, Why he did not take care ot' Arne,
fertile man cannot speak? And anawer waf
made by Barnes, Let hint die and be damned ;
and this was in the prcsent*e of the warden*
Gentlemen, 1 must observi. lo you. that for ee-
cnrity of the lives of prisnuers, the corooer^
inquest ought to sit upon ihem, to see if may
marks c<HiTd be found to give an inforniatioa u
the cause of death, but this was not done: ibia
is the tiubstance of the evidence, which cnnnaC
be aggravate<l.

Ait. Gen. (sir Philip Yorke, afWrwarda ceil
of Hardwick and lyird Chancellor). My lord,
and you i;ent!enwn of the jury, I am ot coun-
sel for the king, and this proseGuti<>n is the
cfftfCt of a useful, compassionate enquiry ooo-
cerning the gaols, so it was found nccesaery
to bring the cause liefore you, that gaolers OMy
be punished, who have 0|i|M>riunity, and bevn
endeavoured to oppresa the imfortuuaie
■iider their charge and |»ower. It ia
there ahonld be gaols awl prisons, and that
aona should be under confinement i but mtitm

1] for the Murder of Edward Arne.

■riaNlHK ii io tlidr power to CMnmii op-
Hl^ IMBWtulcruclliea, Io the kai of tfaa livu

A. D. 1199.

tSM

WH Aitv*. Al thM time e* cd tbs prwoner niv
him laQgnuh ; hit speech wu lout, nod tfaea
b« Ungublied, and cuaunued ia Ihe duDgeon
till tbt: time «f bis deatli ; thu will app«tr
cltfviy by tbe eTidence, (bit Le dieri in duraw,
aud ibat the di4tein|tcr (here coatracted wa*
ibe OGcaaion of hii death. The next eonai-
deraiiuD ia, who, and what was lUe occaiion of
hit death ; it it the doty of ths gaoler to ban
a coroner's iuquett la oof uire into tlie death t£
a pritnaer, foT hit own justili cation, who, hy
haTing' tiie cududv or, and the ttower ajet kw
priMDen, nay deatmy tlieia ; ttietefore, if
there was do particular reanoa, why thould it
Dot Itavfl beea done? Though he raaaot pi«-
Icud to thew a (larticular onler why be did not.
When I OMiaider, that uotbinif cguld badOM
but by his authority, DOtbing dune but by bia
direction, tLit wan bis (Mriicular ordar.

If b" wbu was Ibe |irinci|ial gaoler, wh»
bad tlie authority to coofioe oiio, and ia dii-
charge bim froui an iinprojier coDfiuenenl, wb*
saw him there did not relesK bim, but iiMlMd

imbhie brick and nortar: opan wkat diet in duress of the t^auler by bard enpflw-.
MMIailaNluiJl, tbf prisuBcr will gireyou menl, in • cruel mannvr, uaueeesaary to (ba
■i^RM. it lie liBil Buy autbaritjr for bjild- gauter'i safe caWody, it is death by la* ; if lb*
■i Otin^ are lu take care ol prisoaera, gnoler ia not aosnerable fur tliw act, wbal
■■■■•iKiUdaii&t^iiB 10 putlbcm in; tbe needii the dead pMWJOt Io be enquired after by
*fc *«" ou lit}, bui Tcrydsmp and no- i ajuryf Justice ouiflil be d'loe, iel it fall ob
^^■Mt, «> uiually sneh placet oiusi he. wlioinil will; aud I do not doubt, botthajurf,
wlititticiriihtamling in ibe cellar iiMfeii' I for Ihevakeol'lheir oalbs, will liud liiin ifuiky.
Wf, Stnn, wlia was eutriiKcd with the Sol. Gea. (Hou. Hr. Talbot, alUrwank k
■Mlfltf |irisi)net«, Bei/eil him and p«l him Peer and I»rd Chapcellor.) We will call sor
■Mfln, ind he wasihprepiitwitliont any etideucrto proie the facta.
^Wifpmigiaii la sHKiain life; there w

ce of the alBiott op-

tt cruelty. Hr. Hug-

_.._ Fleet prison, and had

cuHaJy of the priaonen, and

Ml^paull), nr by liis deputy, to take

■ MpiB, >iiiiu is answerable' for tbem :

~ "' ' itiie came a priaoner io May

iauad ibere lilt he died. At bis

I, be liKlged Willi -one Bcbcrt

f difference bappeniug betweeu

tek Ku uiiiKd out of that room, and Iaj

. aditniuiiiialitll. This nabappy raao wsa

I alakiLHilKnt ia bii aeuacs, which his

■■I al|;lil reisanohlv oeoaaion ; be was

fuiet oMu ; nt about tbis lime,

t* jjchetiie of baTioe a pritou

.■hub » as the ooeaaMH) ofibeir

f op^rmioae u|>oii ibe prisoaera.

inaninas tbeoereotcdin (ha dud-

ftniih, cominouly called

iMiblc w],fre yoo niiKbt put a liule driok
ifltHUKs III' bail an opportunity uf
It. ami wiiiieliaiea nooe. Undi;r this
111 |ieraii> u»s krpt, without any
Mo p.a!<r nature; thedescri^ou it
iiu more evtry Irady to cnmpaHainn.
•l[u<:eoil lu w iih him, and he ripped
crfpi lotu il lo keep himself H-arin,

litrssiiji'k to hia:i by reason of his

•*f bnm^ar^ wiUi bin own ordure, which
■W Ml a|i|>OTliiiiiiv of dnjfl|[ out of llie
m- Dunau ilii- uliule time whilat Arne wih
*bal, Mr, llii^rgius, wlio was then narili'n,
[ «t »>«, ihou^b be ought to bate corae
'■B'laadbis duly retjuirel him so In do :
vSoggins looked upon him thete, aodaaw
Wtia tbai ooodiiion, io tbe place built by
■tvs order; but the priaoner, ao far fram

RUflt any relief, or maoriog him out of
afiacmeiit, orilered llie door to be locked
f ■ kta prcBotce, be being warden, aud by
aaalborily. Tliit affectiog cnudilion tiie
WMaa wa« in, aud Jn tbe ciiwaraitaikce be
■sia, he augbt to hate rdierod bim. tie-
•danbcMiant were made to Gybbon, and
kvifaaaersaat* uf tlte warden, tu desre this
t^ifiy man to be releaaed i lellu:s were sent
Mw bianiaeraUe cmtdition, that he vat
I likely to live, and to desire that he mi^lu
tm atitt m futyar «urta|lj j but aalbtng

Call Richard Longbom. (Who wat awoni, aa
were all ibe rest that appeared.}

He produced a copy of Mr. Huggiot'a
patent, brarin)^ dale the S2d July, the 19lh
queen Aon, wlucb U^ proved to be u true oo|)y,
and Mich part of it wat raad as prored him to
be warden.

Huggint. Uy lord, I desire the Habendum
may be rtad. by which I hare a power to ap-
poiut a deputy or depuliea for and durjug inj
oat oral life.

Mr. Just. Page. I don't know what use yon
will make of it; but you may call fur it ia
yourdetieDce.

JUAert Bigrave awom.

Sol, Gtn. Do you know ibe prisonCTf

Btermc. Vpry well,

Sol. Gtn. Uuw loagbareyOD known hittf

Bigravt. I knew him when J waaCkrkof
the faiiarB, in April 17S5.

Sot. Gen. Did he aci i

Bigratie. lis was warden, but did BOtact;
Mr. GybbcD was deputy lo .Mr, Huugiiu.

Sot. Gen. Who conalituted you Ckrli ofliia
PajwrsP — Bifirave. Mr. Hugf^nt.

Sol. Gtn. Were Ibr securities tsken ia tba
aaiue of ftlr. HuggiusP

Bigrave. The security booda were taken,
and returns madeiu tbe Dame of Hr.Uo^

1.4.

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I • • ,1 •'> n •f.fi

' ' ,• i - -- ^ -IS ▼ -~- 1

. »'. * .! I* --■-■■ - '.--•:•*. 'Mis -■

■ ' " !»•:*■ •..- . ni": ; n

■- -. • ■»' « \ Jt- z '• '- '■'■ •-'•' :•■■•- ': . ;-

•• • •/ ■»■•.•' i •»<:.■■»-■ ■. 5 . 'i- -—^

V v^/ »«■» ; i** ■ I.*-* * A ••--•; •

."* . ».' : ;.'«^ Vi Mr 'rf-.w:-.. u;.

»•'• ;»• -f'. .•^r i«»n .'•%t<'1 t** I

■

thff"* '1 tin wurrrkiitH were gene!

Jiit the Murder ofEdtioard Arne.

▲. D. 1729.

[318

0 office, aod signed and gealed in
Lbey were filled up by Mr. Oyl>bou,
lod sealed by Mr. ilu^gins.

. Id whose name were the war-
led?

The warrants were returned in the
!r. iluggins, but by the direction of

. Was Barnes my servant or Mr.
He was allowed to be a servant to

D. '

ke Page. I will ask a question

. 1 must beg^ leave, my lord, to
lestion more, and then will make
rations upon the evidence.
,ce Page, It is not proper to break
\ evidence to make any observa-

. This is the grand point.
ice Page, Whetlier it is or no, that
mod. If you insist u|)on makinfi^
kfl now you shall ; bin I think it
yom: prejudice, tor by that you will
d from making your remarks upon
' the evidence.

. My lord, 1 will then submit.
ice Page. If you will ask Mr. Bi-
Dore questions, you may proceed.
. Did you hear of any ill-usage from
oan (meaning Mr. Arne) P

I remember Mr. Arne was there,
lew no such man, and heard he was
groom.

. Did you hear of any alteration
ade in the strong room while Mr.
lere?

I never heard of any alteration
time.

, Did not Gybbon keep two distinct
le and the same hutise ?

in the ycnr 1725 he did.
I. . Pray distinguish nicely as to
ggins, and Gybbon, whether Barnes
»loyed as watchman while Huggins
il, and Gibbon deputy- warden;'

lie was.

, Who put you into your office?
Sir. Uuggins put me into the

1 made an agreement, and was to
il me out of each day -rule.

D Carter, Who made the agree-

I made the acfreemcnt with Mr.
id paid 700/. to Mr. iluggins and
I.

D Carter, Who put 3Ir. Barnes in ?
Blr. Gybbon.

B Carter, fiow do you know f
1 beard so.

CSall Richard Bishop.

Wlial arc vou ?

was tipstaff to Mr. Hucfgins, pre-
HMpm came to his utfice, and
ll.lSrit. .

Sol. Gen, Who was deputy then?

Bishop. There was no deputy- warden, only
Mr. Dickson, Clerk of the Papers.

Sol. Gen, When did Gybbon come there f

Bithop, In the year4724.

Sol, Gen. What time did Arne become a
prisoner ?

Bishop. In 1724 or 1725, T brought him
down from the judges chambers, and put him
at the Vine as usual.

Sol, Gen. Why did 3'ou not bring him into
the prison ?

Bishop, Because he thought to give se-
curity.

Sol. Gen. Was not that a spunging- bouse?

Bishop. Yes.

Sol. Gen, How long did he continue there ?

Bishop, About two months.

Sol. Gen, Where did he lie, when he went
into the gaol ?

Bishop. When he went into the gaol, 1 did
not trouble myself about it.

Sol, GcH. Do you remember the building
the strong room ?

Bishop, I do remember its being built in
1725.

Sol. Gen, What sort of a place is it?

Bishop, 1 have seen the outside, but n<sver
saw the inside; 1 believe it is built over the
common-sewer, and but a little way from the
dunghill; the ashes and dirt of the boose is
flung down there.

Sol, Gen. Did you see Mr. Arne there ?

Bishop, I saw him once in the long room
out of his clothes, before he was brought into
the strong room, and I complained to Mr.
Gybbon, and said he ought to be sent to Beth«
lem, but he put him in the strong room.

Sol. Gen. Can you tell of any complaints
made about Ame's being put there ?

Bishop. I did apply to Mr. Gybbon, and said
it was better to keep him in his own room, ^or
if a wise man was put there it would make
him mad ; and it would have made me mad if
I had been put there myself; and i heard Mr.
Gybbon speak to Mr. Hopkins to acquaint Mr.
Huggins, that as Mr. Taylor was one of the
governors of Bethleni, and Mr. Hu|;gins's
friend and acquaintance, he might easdy gft
him in there.

Huggins, It was no part of the office of
warden of the Fleet ; but 1 might, by a friendly
office, use my interest with Mr. Taylor, and
that would shew me more a humane man, than
one guilty of cruelty.

Sol. Gen. Did you see Mr. Huggins in the
gaol, during the time Mr. Arne was in the
strong room ?

Bishop. 1 saw Mr. Huggins there several
times, but can't say whether then or not when
Mr. Arne was in the strong room.

Sol. Gen. Was he any way abusive ?

Bishop. 1 never heard that Arne was any
way abusive, or needed any such restraint.

Sol. Gen. What was James Barnes ?

Bishop. He was to take up people that the
wardeu directed him to take up, and acted .as

319]

S OEORGB IL

watchniaD in thei^, and wm lerruit ttiMler
the warden.

Sol. Gen, What time waa Arne pat id the
strong room ?

Buhop. lie came into the priaoD before the
alroog room waa bailt.

Soi. Gen, Do you remember when it waa
bnitt^

BUhop. It waa built in 1795, 1 belieTeatthe
latter part uf the summer season.

M, Gen, Do you remember the time while
Ame waa there? — Bishop, I do.

Sol, Gen. Waa there any thing of eonse-
quence done in the gaol, without the direction
of Mr. HugginsP

Bishop, Nothing of couseqnence was done
without bia direction ; but the common busi-
ness of the gaol waa done by Mr. Gybbon's
direction.

Sol. Gen* Did you ever speak to Mr. Hug-
gins in relation to Arne's confinement ?

Bishop, 1 believe I might speak to Mr.
Gybbon, and 1 beliere I might speak to Mr.
Huggioa, for 1 frequently did speak to him
about business.

Sol, Gen, What condition was Mr. Ame in,
when brought to the Fleet f

Bishep, I think he was in his senses, he was
inoffensive, and I think there wss no occasion
to confine htm ; I saw him several limes walk-
ing about the yard, and if he had been confined
to his own room anv-body might have looked
after him, even if it nad been a child.

Ss/. Gen, Had be any bed whilst in the
Strang room?

Bishop, I think he had no bed there, it was
a dark place, I could not see into it.

Sol. Gen, Did Hug^ins use to come there
after Gybbon was deputy ?

Bishop. I saw Mr. Huggins there several
times afcer Mr. Gybbon was deputy- warden,
and Huggins used to give directions, during
the time Gybbon was his deputy, and Hop-
kins used to bring orders to Mr. Gybbon from
Mr. Huggins.

Sol. Gen, In what condition of health was
Mr. Arne when he was brought in P

Bishop. He was in a good condition of
N kealth, and in his senses ; ami I believe, lieing
put in the strong room in the Fleet, would have
killed sny-body, and thai iliat forwanled Arne's
death, and he would not have died so soon if
lie had not been there.

Huggins. When von Rpoke to Mr. GyNion
to apply to me to make intei-est to the governor
of Bethlera, whether it was guatenus wardrn,
or only as I was supposied tu have acquaint-
ance or interest ?

Bishop. It was l» apply to you as warden.

Huggins. Were there not women prisoners,
and meu's wives in ttie gaol ? — Bishop. Yes.

Huggins, My lord, it was very unfit for a
maa to go naked about where* there were
women, and it waa §1 lie aliould be con*
Ased somewhere. Whose aervant was JanKs
Baraca?

Biaktj^. Mr. Ojkbaii*a.

Trial of John Huggins^

Mr. Justice Page. At the time when
about naked, was there no other room
could have been put in ?

Bishop. There certainly were oChe
where be mifi^lit have i»een put.

Mr. Justice Page. How often have 3
him naked ?

Bishop. 1 saw him naked but once.

Mr. Btfron Carter, You said Gybb
some directions, and Huggins gave 1
rections; now during the time that
acted, did the prisoner, Mr. Huggins. |
directions as to the m(»ving of prisonen

Bishop. My lord, I never meddled w
was done in the inside of tlie prison,
inform yon.

Call Mr. John Cotton.

At I. Gen. What ofiicer are you b<
to the Fleet?— Co^^ora. Clerk ot the ¥

Alt, Gen, Pray see what time A
committed ?

Cotton, He was committed the 13th
1725> at the suit of John Martin am
upon mesne process.

Huggins, I desire he may see, whei
bec:ime a prisoner P — Cotton. In Hilar

Att, Gen, Is not Barnes still a priisc
what is beoome of him P

Cotton. He was a prisoner, and
liberty of the gate; and when the ord
House of Commons came for taking
custody, be ran away, and Corbet ha
voured to find him out, but could not.

Att. Gen. Was Arne charged in ex

Cotton. No, he was not.

Call Mr. Thomas Farrington.

Aft. Gen, Did you know Edward ^

Farrington, I did, and the first timt!
came into the prison, it was l>etween
and 28th of June, 1725. He was sc
at the V^ine before.

Att. Gen, What state of health was

FaYrington, When he cnme into 1
prison he was in a gotxl state of he
tree from any sort of dclirioiisness, am
sa^ him do any ihiug amiss to man,
or cliild.

Ait Gen. Do you remember his be
finetl in the strong n>om P

Farrington. 1 do remember Ins be
fined in September, and that he died in

Alt. Gen. When was the first t
knew of his contineinent ?

Farrington. The first time I ever
his being confined, I heard he was ca
the strong room by Barnes, by the din
Gibbon, dc|»iity- warden to the prisot:
bar, and he had lain bel'ure that in n
with Kul>ert Shaw, and upon some di
being turneil out of that room, he th
the common -hall. U|»on a bed of I
which he laid upon part of a broks
bedstead.

Att, Gen. Wlien was tbe first liiM
Ame in the strong rooss f

»l]

Jor the Murder of Edward Arne.

A. D« 1729.

[S2S

1. I Htw him the very day he was
pstio.
Att. Gen. What sort of a place is it?
Furington. It is a room arched o?er liJce a
nuh, aDil bad been new erected about six
vedu, and the walls were very damp and wet ;
jta ught strike off the drops with your hand
Hc lbs dew on the top of the fgnms in a morn-
ing; ibere was no wainscot nor plastering,
Ikytvm some boards at the bottom, but wbe-
Ihv oiirely boarded I can't tell. It was a
nrilaidied over, and when Ame was carried
hMiilBd; there was a window over the door
llm^rters of a yard long, and another on
ikaie of the door seven or dght inches long,
mihm wide, and no fire- place, and the com-
Ms-Kwer runs under it.
Alt. Gen. Wliosupplie<l him with victuals ?
fvringion. I saw Mr. Louden give him

Att. Gen. Who kept the key of the room ?

Icrrington. Barnes.

Att. Gen. From the time that Mr. Ame
■winlfi the prison, which was between the
lOlkftBrf V8th of June, till he was put in the
rotini, what state of health was he in ?

Immgton. Ue continued in a good state of
till a little before he was put in the
room, and then he grew somewhat dis-
; ami from the time he was put in the
roam he altered every da v, grew hoarse,
mi atltiteould not speak, and he grew weaker
id vtakcr every day ; about the beginning of
Offcerbe hwt bis voice, he grew then delirious,
ttinpl o|ieD his bed, and crept into the fea-
tbm, lod fine day came to the chapel with ex-
cicanit and feathers sticking ubout him like
a niifpye, lieing forced to case nature in that
p'ace; ind after that, I saw the prisoner at the
ur, led Hopkins, looking into the strong
imb (die door being open) upon Arne, and
Anenas lyinc in the bed ript open, and covered
■uch 'Jynix as high as hisi navel.

An. Gen. Dill you hear Arne speak ?

i'%rnn^toa. He was very hoarse, and could
BK fpeak, but lilted up his eyes, and looked at
MLllut^i^iu't.

Ait. Gen. Did HufTgios then sec him ?

Farrin^tun, Mr. llugt*ins must see him, if
k»u rpii blind.

An. Gin, Did yon hear them speak ?

hrriHffton. Mr. Hoggins and Hopkins
*^leretf , but I did not hear what they said ;
ktHa^ifins shook his hoad, then Barnes shut
^duor, and Hn^^gius and Hopkins were then
Ngauray.

Mi. Gen. How long after was it before
Inedieil? — Fnrrington. About fourteen dayh.

Mi. Gen. Did you see Aru« Initwcen this
^•f Hiiffgiu* being there and his death ?

hrringlon. I saw him the morning before
nM^ tnd at that time he was so weak, he

^ not stir any way, but there lay gaping

vbe.

Ml Gen. U'hat was the occasion of his
M ia that languisbing condition ?

tirrim^tiin. Arne'i coBfinemeat was the
TOL XVII.

occasion. I was in-the strong room three days
myself with one Smith, my legs were so
swelled, that the small wus as big as my thigb^
and 1 never knew a day's sickness till tliattime^
and if I bad continued a week longer it would
have killed me, and I was forced to buy paper
to ease nature in, and fling it out of the window.

Att. Gen. What is tlie situation of that
room?

Farringfon. Its situation is at the furthest
part of the prison northward, and there is a
sewer under it, into which runs the water from
the pump to carry off the excrements of the

Erison, which are emptied into it, and the dung-
ill was then about six yards from it.

Att. Gen. What distance is there between
the strong room and the dunghill now f

Farrington. About eight yards, and all the
nuisance of the house is flung there, and them
are very bad smells.

Att. Gen. What was the occasion of Um
death of Arne?

Farrington. I think it was the strong room
was the occasion of it, for it was enough to
kill the strongest body.

Att. Gen, Did Arne die there?

Farrington. He did, and Mr. Huggins al-
ways said he had authority to put persons in
tlie strong room, or irons, which 1 can prove
under his hand (and was going to pidl out a
paper, which not being allowed as evidence, he
desisted.) I saw Mr. Huggins a second time
walking upon tlie Bare with Gybbon and
Levinz, between the hours of eleven and one, a
week or a fortnight alter which he was at the
strong room,

Aic. Gen. IIow long did Mr. Huggins stand
looking upon Mr. Arne in the strongroom ?

Farrington. Ahout three, four, or five
minutes, and he then stood looking at the door,
as I now .Mand looking at the counsel.

Att. Gen. Was Ame let out of the strong^
room afterwards?

Farrington. I never heard that Ame was
afterwards out of the strong room till he die<l.

Huggins. Did iiol you make some aiiidavits
by way of complaint to the Court of Common
Pleas i* — Farrington. Ves.

Hugging. Please, my lord, to ask, Whether
or not Mr. Arne was meutioned in that com-
plaint that he made ?

Farrinf^ton. I never made but three afKdavits,
two of which 1 have in my hand in print, hut
don't remcmlier Mr. Arnt's being muotioucd
in either of ihem.

Huggins. My lord, the affidavits tend chiefly
to the sending of coflins in.)

Mr. Just, raiic. If \:>u intend to make any
une of those attidavits, they must be produce*!
and read.

31 r. Richard Tulthorpc sworn.

Att. Gen, Did you know Edward Arne?

Fidth^rpe. I did, I was a prisoner then my-
self, he was brought in the latter end of Augu^^t^
and I remember him a prisoner In* fore he was
confined ia the strong room i i being ia the

StS]

3 GEORGE IL

cellar, one Barnes and two or three other aer-
▼anta of the wardena took bim by TioleDce and
carried Kim there.

Att Gen, Had you been in his company ,
and bad conTersation v^ith bim ?

FuUhorpe. 1 had several times*

Ait. Gen. Was he disorderly ?

Fulthorpe. He might be a little in liquor,
but he did nothing to offend any one, and gare
DO disturbance to the company. He was car-
rieil by Barnes into the strong room.

Alt. Gen. What sort of a place is the strong
room?

Fulthorpe. It is a place like a dungeon, with
A hole on the side big enough to put in a full
pot of beer.

AU, Gen. How big is the room P

Fulthorpe. The room is about half the big-
ness of the Court where the counsel sit, and
atands near the duncrbill, and the sewer runs
under it. I saw it opened.

Att. Gen. What was over the common
ptwer?

Fulthorpe, There were boardslaid loose over.

Att, Gen. What was between the common
•ewef and the boarda P

FuUharpe. Nothing. The walls were green.
It was not tiled in, and had scarce been built
above a week, and was as wet as any thing
could be.

Att. Gen. Who put Ame into the strong
toomP

Fulthorpe. Barnes and some others, then

Crisoners, who acted under the warden, took
im out of the cellar, put him in there, and
locked him up.

Att. Gen. Did you see Mr. Hnggins during
the time Ame was there confined P

Fulthorpe. I saw Mr. Huggins twice there.
I saw him at the strong room ; he went along
with Gybboo and Hopkins, and Mr. Huggins
laid bis hand upon the door, and looked in, the
door being open.

Alt. Gen. How long was he there P

Fulthorpe. A minute or two.

Att, Gen. Who was there besides P

Fulthorpe. Several belonging to the Fleet.
I believe Barnes was there.

Ati. Gen. How long before the death of
Anie ?'--'FuUhorpe, About a month.

Att. Gen, What condition was Ame in at
the time he was put in there P

Fulthorpe. When he was put in there, he
was a little out of the way when fuddled, but
when sober as well aa any man ; when 1 came
to the door, there used to be a smell enough to
atrikc one down.

Att, Gen. How long was Ame in the strong
room, before you saw him there?

Fulthorpe. I went the next morning, and at
aeverai other times.

Att, Gen, How long was Arne there P

Fulthorpe, About six weeks.

Att. Gen, What condition waa he in when
Uuggins looked upon him P

Fmitkorpe, Ha wta ?«ry ill when Hnggint
laakad upon jam/

Trial of John HugginSf

Att. Gen. What do yoa think waa tb
aion of bb death P

Fulthorpe. The confinement and the
ness of the room gave him his death.

Att. Gen. Had Mr. Huggina spoke
Ame taken out?

Fulthorpe. He had not, for the dc
shut, Mr. Huggins being then present.

Att. Gen. How came you to be then

Fulthorpe. I wanted to speak to Mr
gins about business, for the payment of
drawn upon Huggins by one Lewis.

Att. Gen. How came Arae to cut hia
pieces, and creep into the feathers P
. Fulthorpe. It was occasioned by his (
raent; there was no fire there, and I
the confinement was the occasion of hit

Huggins. How oflen did you know
out P — JWthorpe. Two or three times.

Huggim, How long were you a p
aflerP

Fulthorpe. I was discharged by the
Grace.

Att. Gen. How came you to be pre
the time Mr. Hoggins looked into the
room?

Fulthorpe. I waited for an opportt
speaking to him about a note.

Mr. Tudor Smith sworn.

Sol. Gen. Did you know Edward An

Smith. 1 knew Mr. Arne very well, a
he was in the Fleet prison. I remem
time of his coming into the Fleet prii
was with him in the sponging- house, ai
he was carried into the Fleet prison.

Sol. Gen. Where did he lie P

Smith. In the room of one Robert Shi
continued there about a fortnight oi
weeks ; but upon some quarrel was turn

Sot. Gen. When Arae came out of th<
was not his bed turned out with him ?

Smith. It was; upon which, he thei
the common -hall for some time.

Sol. Gen. Did you see Arne carried
strong room ?

Smith, I was in the cellar, when he \i
ried to the strong room ; Barnes toe
away.

Sol. Gen. What was Barnes?

Smith, I apprehended him to be Mr
gius's servant.

Sol. Gen. What did you see done by I

Smith. I did sae Barnes come, and tal
by the collar, and he said. He must g<
with him. Arae said, Where? Barnes
No matter where, you must go along wi
and the next monung I saw Arae in the
room.

Sol. Gen. What state of health wa
when carried there ?

Smith. He was in an ill state of healt

Sol. Gen. What sort of a room was i

Smith, It was newly built, very dam|
nauseous place. I knowing him befe
under more than common concern, #0
Araa how ha did? And he said Ban

^ the Murder nf Eihmrd Arm, A. D. 1729.

Smith. 1 received ao aoBwer tVoiu Mr.

uknl liim if lie had a bed ?
H«aiilbebMt nobrdi but the nut day a bed
■t> imii|;b( to hil».

HtL ((«•. Ilov lone did he lie there?

Smui. A moDtb or six weeks ; I tiwied him

U. Cm. Wi8 lli«re any lirp-|ikce, any
0»ik, ar Aoy thing oeceuary tu ease na-

iiiA There vnu no (ire-place, no candle,
Mt^Btctwjry tooseimtureiu, and hewui
kriado all thai nature requiTPd (here; and
■^itiaie, when I carried drink, nieai, ur
A*kiB, 1 hare been forced to hold my nnae.

U. Gn. What place was tliere tu let iu the

SjwA. Tbere was a place oTer the door witli
• loot in letigtb, anil another bole

' 1 a fool and bull*.

Dill yoM give any rolica lo Mr.

' : L.i- condition litis muii was in ?

^hh. iJnriiigbern B pritoiicr some lime, 1

k ^ftii4 Ivr tliB benefit of the rules, and he re-

I tBifi lat IV>r the iiberly of the rules, and

I IhffaiH and Oybbnn insisted upon 10 guineus

I ■■(; aoil I » rute foar letters of the usage I

I Molted, ItAfing palil seTeral snuia of money ;

I <4di 1 sent to Mr. Hui;gias by Robin tlie

[ mr, and did in one of them, of the Ath of

Qato, mrniioD Mr, Aroe's coofinemeui.

It. Bamn Carter. To what uurpose wa
tekUrrf

imii. II partly related to my own buslnesi

■■dl mtniiooed that tbe slri>ng loetu kus

'"' ::■ < fit for ii Christian to be in, and Mi

,1 n very miserable CO ndiiian ; an

" *iicb a condilion, 1 ^lehima

;:.. ^.'Mii. beiDfc in ■ mannVr nakeil tor
ku •< ii.icrin^, lie bad ripped open hia bed,
<UkJe<,l mio the feathers.

Xr Baran Carter, Did you lake any
••ttt leilrr »l bis lying in ilie fealliera ?

' ~L I had wrote in the letter almul neeine
Salotbe fcutheri, aiid direclnl ilie letter to
Ib.Higjpaa, al liU houiw in Bl. Martin Vlane,
"i ■« ii by Robin the porter. I spoke to

M Jwtice Page. Thiit waa not material.
Barim Carlrr, Did you ever aee Mr
U in (be gaol f

L 1 BCter did, but wtlelied an oppor
W«tm*iatC him.

** ) Carter. What condition wa'

• M n muwrnble (ceue ; and 1 taki

llic cause of hii death ; and that

1*1 by lieiii^ in »iuch a condiiion.

ku. I deaire he mav be asked,

fnir I liAiJ oome into the Fleet prisuo,

N ham seen nie ?

I brlii*e 1 <ihuu!d.
-itt. D'dyiiietetaee

^ I ant Ur. Hugicins two or three

W, u ibe lime ibe oruilionoii

Hiumt. 1 rfetire lie may be aakei), my
M, tf ba itKnni My auiwct frtm me tu the

nessf-.5ni,(S, It did.

Jtoberl Satitlclair, the porter, iwi

Atl.Gcn. It that ibeman, Robin?

Smith. It la the man I scut.

All. Ocii. Did you carry any lettcn
Mr.Smilli?

Haintclair.
brnugbt aiiswi

reason of the dislnnce of the time, cannot re-
lueniber the delirery of the letters, but govs
tbe answers to Mr. Sniiih.

Att. Gen. Do you remember about what

Sainlclair. I cannot uy about what time.

Att. Gen. Did you carry any letters from
Mr. Smith toMr. HagiipnBr

Saintciair. I carried aereral letlera lo Mr.
H ufgiiis from Mr. Smith, and always return-
ed an answer to whom I dchrered them.

lluggim. My lord. I desire he mav be ask-
ed, if he ever delivered a letter from Air. Smith
turner

Saiittelair. I cannot iay I
Ho|{g'ins at his own house.

T^tmat Paine swoi

Alt. Gen. Did you know Edward Arne?

Faille. I did, and remember hi* being put
in the Pleei prison.

Att. Gtn. What itate of health was lie iu
when lie esnit there?

I'aittt. He was in a good state of health. I
was in company with him and raplaiu Bat«-
niao, who was al cards, and Ame was at play,
and did not seem to he lunatic ; unil ooe James
Bamea came imo the rnom whdat 1 wai in
I'umpauy drinking with tliem, and Arne iras
rloiii|c nolhinir disorderly, and Barnes forced
liim into the strong room, and I was then hv.

Att. Gen. WliowasBai'uesf

Painr. Barnes was a prisoner, and was made
m watchman by Gybbon, »ho gate him tbe
liberty of the (rale.

Att. G(R. What was his husineil?

Paine. He was a watchmBD.

All Gen. Whose servant (lid you look upon
taiui in bfi>

Puint. 1 looked upon him la be a servant of
Mr. UyhtHin'n.

All. Gen. Did you ever see Mr. Huggins
there ?

Paine. I never saw Mr. Hoi;gius there, Itut
when llie priiihoouiariea were Uiere,

Alt. Gen. What sort of a place was it befora
it wan niude s-i ?

Puine. It wna ■ stable where tlie cocki
and heub roosted.

All. GcR. Did you see it after it waa eow
verted into a strong room, belbre Mr, Arne

387]

8 6E0BG£ U.

Paine. I cannot s&y : bot there wai tn ill
smell came both from the necessary-hooae
and from the dunghill.

Att. Gen. What condition was Arne in,
ader lie was put in by Barnes ?

Paine. Arne ^w outrageous, and tore his
clothes and beddmgf.

Au. Gen. What condition of health was
Arne in ?

Paine. I never talked to him but through
the hole in the wall.

Au. Gen. How was he before he died 7

Paine. J was discharged before he died.

Att, Gen. What kind of alteration was there
inhisToiceP

Paine. He was a little hoarser, abd I could
not see him, but only as I talked to him
through the hole.

* Att. Gen, Was it a fit place to confine a
prisoner in ?

Paine. It was not a fit place to confine pri-
soners in without danger of their lives.

Huggint. WaK there a court of Inspectors
tw governors of the Fleet ?

Paine. There was such.

Huggint. Did they not ballot once a month ?

Paine, We once balloted for steward and in*
spector.

Huggint. Did not the court of inspectors
place Arne in the strong room f

Paine. Tlie inspectors did not so much as
▼isit the strongroom.

Huggint. if any complaint had been made,
was not tbe power vested in the court of in*
specters to redress ?

Mr. Just. Page. Mr. Huggins, that is not a
proper question.

Huggint. My lord, I desire he may be asked
then iifiw long it was before Mr. Arne died
that he left the prison ?

Paine. 1 was dischai^ed in September, about
the 0th.

Huggint. The 8th of September, my lord,
wlucb was about six weeks before Mr. Arne
died.

Mr. Just. Page. When was the strong room
built ? — Paine. lo Mr. Gybbon*s time.

Uug^ins, My lord, if BIr. Oybbon built
the strou^ room, there is reason to believe be
paid for it.

John Bouch sworn.

Att. Gen. Did you belong to the Fleet f

Bouch. I did, I was turnkey there.

Att. Gen. When was (he strong room built?

Bouvh. It was built in 1735, the latter end
of the suuimer, by the direction of Mr. Huggins.

Att. Gen. During the time that you be-
longed there, did not Mr. Huggins come fre-
quently ?

Bouch. He came now and then, not jejff
oflen.

Att. Gen. When was Arne put in the strong
room ? — Bouch^ He was put in about August,

Atlt. Getu Did you know htm before he was
earried there P

'Bweh. IknewhimTerywdliindnofvriair
any ill offered by him.

Trial of John Hugghif

Att.Gen. Whose order wis te pn

Bouch. He was put in by the orde
Gybbon and Mr. Huggins.

Att. Gen. Did he die in that place f

Bouch. He did.

Att. Gen. How long was he there?

Bouch. About a month or six weeks

Att. Gen. Did you see Mr. Huggi
during the time Arne was in the strou]

Bouch. I cannot say I did.

Att. Gen. Who was it orer-kx
building the strong room ?

Pouch. Mr. Huggins, wnen he can
lodge.

Att. Gen. Was he there when the
was a- raising?

Bouch. 1 cannot be certain, but I n
there was a direction of the Court <
mon Pleas for BIr. Huggins to ins
gaol, and that he came once a week i
order from the Court of Common Plet

Att. Gtn. What was the conditio
room?

Bouch. The room was newly built ai

Att. Gen, Did you carry any lett<
Huggins relating tu Mr. Arne ?

Bouch. 1 did carry a letter from a
Mr. Arne's, and he was so weak thei
could not speak.

Att. Gen. Where did you carry it 1

Bouch. From the Fleet prison.

Att, Gen, What was it about ?

Bouch. It was about getting Arne hi
a gentleman gave me the letter, audd*
to oring an answer as to Arue*s havir
berty of tbe rules ; and I went my
saw Mr. Hoggins, and gave him tli
he opened it, and said he would sen
swer by Mr. Hopkins.

Att. Gen. When was this ?

Bouch. It was in October, about a
fore Arne died.

Att, Gen. Where did Arne die ?

Bouch. He died in the strong roo
him two days before he died ; he wa:
if dead then, and very weak and ill.

Att. Gen, .What Kind of a place
strong room ?

Bouch. It was a very sickly place
of the common sewer running under 1

Att. Gen. What message did Mr.
send by Mr. Hopkins as to the letter '.

Bouch. Mr. Huggins sent word b
Hopkins, that he would inform Mi
friend what was to be done.

Att. Gen. Who was it built tl
room?

Bouch. One Fry, a bricklayer, to<
tions from Mr. ituggins, at Mr. h
own house, and I was present when
there.

Att. Gen. Who paid for the buildh

Bouch, { believe Mr. Huggins, for
a master bricklayer, and I saw him th
business afler the building was finishe

Att, Gen, How came you to be the

Bouch, I went there Q&eD to geli
Mr. Huggiw.

3»]

fir the Murder of Edward Ame.

A.D. 17S9.

[5S0

Mr.

Alt. Gen, When were yon turnkey ?
houch, I was not turnkey till after
Aroe's deatb.
Att. Gem, Did yon ice him in the strong

fiiMcA. I saw him in the strong room twenty

tioct, fur I Has then endcafouring to get to be

tnitej.

itt Gen. Whom had ^nu the pkice from f

Hodk. From Mr.Hnggins ; and during the

tef vas endeavouring for it, I saw Mr. Ame

■tteMroogroom.

James Tucker vwom.

Atl. Gem. Do yon know the place (hat is
oiled the ttmng room in the FJeet prison ?

l\uker. 1 do, and' was employed by the
WeUiyer ind carpenter to make the iron-

Att. Gem* Whom did you make out your

"to?

Tkeker, I made it out to Mr. HugginSi as

Att. Gen, Did you ever speak to any body
about his relcascnierrt P

Le Vointz. Whilst he was in this place, I
met with Mr. Oopkins, and spoke to him to ac-
quaint Mr. Huggins, that it was im{>ossible but
that Arne must perish, if continued in that

iilace ; and if he did not speak to Mr. Huggins^
[ would send to him myself; to which Hop-
kins replied, he would ; aud afterwards 1 mat
with him, and asked him, whether lie bad
spoke f lie told me he had spoke to Mr. Hug-
gins, who said it was no busiuess of his.

Mr. Just. Fage. That cannot be given ib
evidenire, for it is only hearsay.

Le FoiutM. [Stuniiing up again.] I aaw
Mr. Iluggius upon the Bare, with one Levins,
a QnakiTf then a prisoner in the bouse, and
Mr. Gybbfiii, during the time Arne was in the

stmn*; room.

Alt. Gen. Who paid you ?

Tucker. 1 made the bill out in Mr. Hug-
|infs name, and was paid by Pindar, and a re*
BSft WIS given in full of that bill.

Mra. Eliz. Le Fointg sworn.

Jt't. Gen. Did you know Edward Arne ?
hPointt. I did.

Ait. Gen. Do you remember him a prisoner
is ike Fleet, and bis confinement in the strong

1/ PointM, I do ; be had been confined two
vrihree fla3'S befure 1 went to him ; the first
tm I saw him sittin«r upon a bench, and the
Bvutme in Win feather-bed, and lie was cover-
AirhKvin, and hi:i l>ed lay on the floor.

.-'/:. (J in. What condition of health was
kio*

LtPmntz. I nevpr found him any way dis- ^as after the tire happened in liell-Savage

kiDp^reiK only disordered by the'col(f and
dut.pD<rss of ihe place.

Alt. Gin. Was not his voice altered ?

le Pol fit M, He had a shivering hoarseness
SpOD liiui.

Att. Oen. How long did he continue there ?

le Point:. He continued there seven weeks,
* ibfereaboats.

Alt, Gen. What condition wns the place in?

Le PointM. It was building in July, and J
Rmember the finishing of it some time in Au-

Alt. Gen. W^hen was Mr. Arne put in ?

le Points. He was put in as soon as it was
fiii»faed.

Att. Ccn. Do you believe that was the oc-
caioQ of bis death ?

If Puir.tz. It was impossible to be other-
^ ; fur the huililing was so very green, that
S«u might pull the moriar from the bricks
*A Tour fingers, and it was impossible any
hiv eould be continued therein for seven weeks
iQQut being killed by the dauipness of the
fhoe ; and I verily believe that confiuemrnt
*■ the occMioa of Ame's death.

Serj. Cheshire. Which way did he come
upon the Bare ?

Le Pointz. I cannot tell ; there were then
but two ways, one by the strong room, and ikm
other through the house.

Serj. Cheshire. Whereabouts is the strong
room?

Le Pointz. The strong room was built near
the Bare, und joins to the end of the house ;
and I saw them walkinjg; together ; aud that
he could not well come in or out niiiiout com*
ing near the stronpf room.

8erj. Cheshire. What did you think was the
occasion of his coming there ?

Le Pointz. To take a survey of the walls,
which were then finished, for that I saw him
look up at them.

Serj. Cht shire. Did you know Mr. Iluggins?

Lc Pointz. J knew him very well.

Serj. Cheshire. When wasjhisp

Le Pointz. I lake it tu Ik* some time in Oc-
tober, about fourteen days before Arne died : it

yard.

Thomas Levinz was called, and being m
Quaker,* refused to take an oath, and there-
fore cuuld not be admitted an evidence.

Jluiigins. It is a <rreat w hilc ai(o since this
matter happened ; there is iki notice taken by
the course of the evidence how this matter has
gone on, and therefore it was \>ry difficult to
answer particularly thereto ; this 1 do sideinu-
ly affirm, that during the t.ine Arne was there,
1 never lieard of his name, that he died, or was
in the strong room, till that I was iu the Fleet
to be examined : that I never was seen in tlie
Fleet prison while Arne was in the strong
room ; and that no one of the kin^^'s witnesses
has said, that I used any hard words aliout

* *Mn the case of Bambridj^e (postca) the
appellant's counsel called u (Quaker, and in-
sisted that this is a ci\ il suit, in w hich he mig[ht
be a witness. But the chief justice said, it
was to this purpr>se a eiiininal iirucieding, and
therefore he couid not be a witness. Strange'i
Reports, vol. 2, p. 85C.''— IWicr Edition*

331]

S GEORGE U.

Trial of John Iluggint,

[SSi

Mr. Arne.^ There was a suggestion of mj get-
iing Arne into Bethlehem, it was oo part of my
office as warden of the Fleet, bat 1 might by a
friendly office use my interest with Mr. Tay-
lor ; and that would shew me more a humane
man, than one guilty of cruelty.

That some of the prisoners^ who were wit-
nesses, were discharged the prison the 7th of
September, so it was not likely that they should
be able to swear as to Arne's death, who did
not die till October.

As to Gybbon being deputy, the first evi-
dence to be produced will oe the act for insol-
Tent debtors m 1725, to prove that Gybbon car-
ried iu a list pursuant to that act ; and deliver-
cm! it as gaoler, and swore to it ; and I must de-
sire, that Mr. Tanner may read the clause in
that act of parliament, where gaolers are di-
rected to make out a list of prisoners.

Att, Gen, If you would prove Mr. Gybbon
warden, you must prove what consideration lie
gave, and what stile he bore.

Mr. Just Page. Did the commissioners in
that act take notice who was deputy-warden or
not ? Let it be deputy, or how it would, they
took no notice of that. 1 1 would be no evidence
for the king.

Huggitu. It will prove that Gybbon aeted.

Mr. Just. Page. We shall see that when the
act of pariiament is read. I allow Gybbon did
act in tact.

Att. Gen, If he has a mind to prove Mr.
Gybbon deputy, he must prove it by his depu-
tation.

Serj. Cheshire. It is too early to offer this
before the deuutation lies before us ; therefore
I submit it, it it is not too soon to offer this in
evidence.

Mr. Just. Page. I cannot direct the prisoner
how he should proceed ; whether this may be
of advantage to him I cannot find. If he be
charged from a particular fact that did arise
by Gybbon, why should not Huggins, by the
same rule of reason, justify himself by any
other act done by Gybbon ?

Vide Act.] Then the clause in the Act of In-
solvency iu the year 1725, was ordered to be
read.

Mr. Just Page. I do not see, upon reading
of the act, it affects any thing that has been
said. 1 take it that the officer acts, and makes
returns, and the law does not say whether it is
the warden or the deputy < warden. Mr. Hug-
gins, 1 dare to say you yourself will own it;
and the use that you would make of it is to
shew, thit he acted as warden.

Huggins. FuUhorpe was discharged the 7th
of September. 1 desire Mr. Tanner may pro-
duce the list, and that it may be read to skew
that

Mr. Just Page. If Fulthorpe's evidence was
laid aside, yet there are witnesses enough to
prove, that they saw vou there : however, I
most take notice of wnat Fulthorpe said ; he
aid, that Arne was a peaceable man, and then
gtre a defcription of the room i ind nid» that

the floor was covered with a few boards ; and
that he saw the prisoner twice in the Fleet, and
that he was there at one time, and k)oked in at
the door, and then the door was shut, and ht
went away. This defence seems but trifiing.

Huggins. I intended it as to the credit of the
witness.

Mr. Just. Page. The man has sworn ho-
nestly, and if it was struck out of the evidenes
it would not signify ; and I must a little asskt
vou, as no counsel is allowed but in cases of
high treason. You were going to shew the act
of the deputy, without shewing what authority
was given to the deputy. If yon have any in-
strument or agreement by which yoa consti-
tuted Gybbon deputy, you must produce it

Huggins, My lord, 1 cannot produce it, be-
cause It is in the hands of the widow GyblMNi,
or some other person ; and we are at this time
in eouity.

Mr. Just. Page, Affairs of this nature have
always been done by indenture — as the aherifii
of London to their under-sherifi*— and then yos
must have a counterpart.

Huggins. My ku'd, I never made any Meh
indenture ; I desire Mr. Tanner may he asked*
who appeared as warden upon the Inaolvcnl
ActP

Tanner, Mr. Gybbon, my lord.

Mr. Just. Page, Do you believe he waa de-
puty or not f

Tanner, I looked upon Gybbon as a proper
officer.

Mr. Just. Page. Who do you think wu war-
den?

Tanner. I cannot say who was warden.

Mr. Just. Page. I thought you would Ml
have equivocated. You are a good officer, but
I shall never eutmine you as a witness.

John Jeffreys^ Keeper of the Compter, swora.

Huggins. Mr. Jeffreys, pray acquaint the
Court what agreement was niacie between Mr.
Gybbon and me.

Jeffreys. There was a writinsf made, and I
was a witness to it, but did not know what it
was.

Mr. Just. Page. Mr. Huggins, the questions
that you ask, you must firbt explain to the
Court.

Huggins. 1 desire Mr. Jeffreys may be ask-
ed, if he was present at the agreement ?

Jeffreys. I was present.

Huggins. Was there any writing signed f

Mr. Just. Page. You must take care to pro-
duce the writings if you examine to them.

Huegins, 1 have sent a mau for the reoeipl
of 1,000/.

Mr. Just Page. 1 cannot comply for thi
same title made under your grant to lie givca
in evidence for the grantor : it was a lilie
from you, and how you will do to prove tbif
by word of mouth, I cannot see how it can be
done ; for when a treaty comes into artichp
and writing, the treaty by word of mouth Nil
an end witnout the wntieg ia prodiiecd.

Jiif the Murder of Edward Arne.

A. D. 1729.

ISSi

Huggiiu, I was going to explain myself,
iid wu o?er-raled.

Mr. JnsL Page. Whenonce articles are come
10 be a conveyance, except it is to explain that
csBfcyance, and except it is to discover some
firtnd even in the conveyance when given, it
CHMl be spoke to.

f]Hr. Baron Carter being gone out of Court,
■wicmned, and Mr. Justice Page took no-
iv lihmi of what had passed in his absence.]

Mr. Hoggins's aim is to shew, that Mr.

Gjttoo was sole, entire, acting warden ; and

llslio act uf Gybbon's should affect him ; and

Mibe late Act of I nsolvency read, and thought

1i have read the schedule, but that could not be

md. Mr. Huggins asked who brought in that

KUdule, and -asked Mr. Tanner, whether Mr.

G)kbon brought in that return as deputy or

M; who said that he did not know who was

Mnlen, but that Gybbon was the proper offi-

cw: now Huggins carrying this matter fur-

te, wouki have Gybbon appear to be his de-

|Mv, ind has now called Jeffreys to prove that

dipiitBtioD. Jeffreys says, that it was in

viiiBg, and 1 could not allow Jeffreys to c;ive

■ criifence what was in writing. Huggins

■U is answer, that there was no counterpart,

■ilhat Gybbon's widow had such appuint-

wmL I submit it if it was not his act and deed,

if Vr. Gybbon allowed uf it

Htegins. My lord, it is only a receipt.

J^ryi. My lord, it was a receipt for 1,000/.
lid no agreement.

fiiffMs. Mr. Gybbon agreed T\ith me for
Wi. per annum ; and liking thobar^a>.n made
«4!faHt of 1,000/. and this was all tlie writing
krtnefaus, and in it declared that ho was to pay
^Xs'. ptr ann., on condition of haviug the rents
•f ilie house anil sh«.;)s in Westminster- ball,
iirf rpqiiire<l a deposit of 1,000/. and a parole of
thneynrs may amount to a leasp or demise.

Mr. Barou Carter, .4t kix months' end Gyb-
ks desired to haf e it renewed, and came to
the cub«^|ueut agreement for 900/. |)er ann.
Jv three years. If the Court could see that
i^^reement, whether it do not amount to a lease,
LHcre may be a demise in it, but how far the
Coon will lay their commands to produce it,
seihall not now di-ternii':o ; it would bo very
kird to have it out of hLs power, and not to ad-
Bit him to give evidence.

Att, Gen. The law recjuires the best evidence
&u \% to he given ; supposinr; that (hat writiiiir
*H lost, he might he admitted to cfive evi-
4iBce that it wai* lost. Jf it was in ilie hands of
Hy officer of the crown, and they wantcd'lo be
tviitted to give evidence as to the contents,
■Wlber upon giving evidence, that the thinj;;
VHin bciiifiT, and in the hands of a third per-
^ ihey should give parole evidence as to
Irt.

Mr. Just. Page. Hiippose a man receive mo-
^ by false tokens, hnt by some accident it is
fHiato other hands, and he uses all the care
lid art be can to get it, and pmyes that he can-
at it, it would be hard to couvict a

man, if he cannot come at the writing. It is
the same in cases of life and death, by forgery
and false deeds.

Mr. Baron Carter. I agree your notion is
right in cases of civil actions, for if he can't
give such evidence as the law gives against it,
be has a remedy ateqiuty ; but in this case,
where a man stands indicted for murder, where
can he have his remedy ? I am sure we sbouhl
be guilty of murder, if we insisted on it ; Hug-
gins ought to give an account that he can't
come at such agreement.

Uuggim, Mr. Jeffreys says, that he applied
to Mrs. Gibbon, and Mrs. Gybbon told him,
that It was m the hands of one Wilson, her clerk
in court, and he could not tell whose hands it
was in.

Jeffreys. I have a copy of that writing, which
has been in my hands long before any contest
happened to Mr. Hugg[ins, for it was written al
the same time the receipt was given.

Mr. Just. Page. Is it a true copy ?

Jeffreys. I believe it to be a true copy, and
that there has been no alteration made in it.

The Copy of the Writing read And itap*

peared to be witnessed by Mr. Jeffreys, the
26th of June, 1723.

Huggint. Have yon had any conversation
with Mrs. Gvbbon lately ?

Jeffreys. Mrs. Gybtion came to me about
fourteen days ago,

Huggins. Was there any talk of any ioch
thing as a lease or articles of agreement P

Jeffreys. There was no such u ord mentioned
as a'leasc or articles of agreement.

Huggins. Do you know of any articles of
agreement ?

Jeffreys. I don't believe there were any, for I
was very conversant with Mr. Gybbon, but
never heard him ask after them.

Huggins. How long did Gybbon continue in
that otiice ? — J^ff'tys, Three years.

Alt. Gen. U hat do you mean by that -of-
fice ; did he continue to act for those three
years ?

Jrffreys. He did, and one year longer, which
I applied to Mr. HuGC^ins for him to do.

Mr. Just. Page. You were present at theset-

tlin^Lj^ of the account between Mr. Huggins and

present
Mr. Hi
Mr. (ivhbon: at the bottom of the account
there ure some items that have no sums to
them : pray how did that happen ?

Jrlfreys. My lord, it was not settled.

Mr. Just. Page. Was any thing mentioned,
who was to he at the charge of repairs during
the four years .'

JifJ'rtK's. Mr Husfcfins made a memoranduiQ
at the bottom ot the paper.

Huggins. 1 1 M as settled at the end of four
years.

Mr. Just. Pu^:e. The repairs of the prison
were left a blank.

Uusifiinf:. 1 answer to that, my loril, that it
was settled at t!ie end of four years : Mr. Jef-
freys wuN then present. Your lordkhip scems
to take it for a Icu^e of three years.

SS53 SGEOBGSn.

Mr. Just. Fuge. It is neitbtir the one nor the
other, either lease or agreement.

Huggint. My lord, Jeffreys ^aid there was
BO ott^ agreement.

George WeUanduwmn*
Huggins, When did Gjbbon enter upon hb

Wellend, Mr. Gybbon entered at Christmas,
1733^ and I was concerned for Mr. Gybbon
before, and by his direction acted, and he al-
ways paid me my fees, and I never reeeifed
any thing from Mr. Hoggins.

Bugfins. Who bore allexpences relatiiig to
the en^T^Wellaiid. Mr. Gybbon.

mggins. How lonc^ did he act f

Wmand. Mr. Gybbon was in fonr years and
a half.

Huggins. What do yon know abont Ame ?

WeJkind. I was there then, "and Ame was
«emmitted about the middle of May, and at the
^ latter end of Senlember, Hopkins was sent into
the country to Shropshire, and I acted till Oc-
tober, and I was requested by Mr. Gybbon to
go to the Company of Upholders relating to
Mr. Ame. He was brought in May, and put
at the Vine, and made liis escape, and then
grew disordered in his senses. Some of the
prisoners came and brought a bed of Mr. How-
ard's, and 1 saw bim stark naked ; and it being
desired, he was piH in -ttre strong room at the
mraeot of the pritKiners.

Muggins, nil at was done open yonr appli-
cation to the Companr of Upholders?

Welland. They took care of him.

The witness had a book in his hand, which
be called a check- book.

Huggins. Pray give an account, whether I
gave any direction relating to the prisoners ?

Welland. I never saw Mr. Huggins there
but twice, and that was when the Prothonota-
riea were there.

Huggins. When had you that book deliTered
to you?

Welland. Two days before Mr. Fitch died ;
the book was brought into my hands, which I
iMntinued to act in till Mr. Bigrave came in.

Huggins. By the writing in that book, 1 can

Eove Hopkins out of town. When was Hop-
ns out of town?

Mr. Just. Page. I will call Fulthorpe to
dear up this matter.

Fulthorpe was called again.

BIr. Just. Page. When was it you saw Mr.
Hoggins at the Fleet prison ?

Fulthorpe. It was some time before I was
discharged. It was about a month bef^^re Mr.
Arne died, and I likewise saw Air. Farrington
at the same time. Mr. Hopkins was there,
and then came in with Huggins.

Mr. Just Page. How oiWu did you see Mr.
Huifiritis there P

Fulthorpe. I saw him twice at the prison,
hut ones at the strong room.

Mr. JuBL Po^e. What time of the day was
It jrott uw Mr. uuggins th«t ?

Trial of John

) Fulthorpe. It was between elereo ant
and there were there Mr. Huggms, M
kins, and Barnes ; and I saw Mr. 1
walkmg upon the Bare, when Lev
duaker was there, and I believe Mr.
with them.

Thomas Farrington was again call

Mr. Juat Page. Who was at the
room when you saw Huggins there?

JVirrtR^^ofi. There were Mr. Huggii
Jdns, and Barnes there.

Huggins. I beg leave to observe, t
thorpe was discharged on the 7tb of $e|
and whether I may not be allowed to i
Welland again, to know if Mr. Gy bboi
give all orders, and to prove that the t
usage was not to have the coroner bit a
dies in mesne process?
_ Mr. Just. Page. You may ask wb
tions you think proper, for I will stay
to>morrow morning, to give you an c
nity of going on wiSiyour defence in yi
way.

Huggins. I desire then, my lord, he
aaketl, whether Gybbon did not give al
relating to the prisoners ? — Welland. I

Huggins. Whether the coroner wa
in to sit upon any bodies, but in executic

Welland. We never had the coroi
upon execution.

Huggins. Whose servant was Barne

Welland. Mr. Gybbon's servant,
Gybbon pay him money.

Huggins, Did you ever see roe and
together?

Welland. I don't believe I ever did.

Huggins. At whose request was Aro
the strong room ?

Welland. At the request of the prisni

Mr. Just. Page. Name at whose rec
was put in.